Justice, Rights, and Toleration: Essays for Richard Vernon 0228019338, 9780228019336

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Justice, Rights, and Toleration

Justice, Rights, and Toleration Essays for Richard Vernon Edited by

Neil Hibbert, Charles Jones, and Steven Lecce

McGill-Queen’s University Press Montreal & Kingston | London | Chicago

© McGill-Queen’s University Press 2024

ISBN 978-0-2280-1933-6 (cloth) ISBN 978-0-2280-1958-9 (ePDF) ISBN 978-0-2280-1959-6 (ePUB) Legal deposit first quarter 2024 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien. McGill-Queen’s University Press in Montreal is on land which long served as a site of meeting and exchange amongst Indigenous Peoples, including the Haudenosaunee and Anishinabeg nations. In Kingston it is situated on the territory of the Haudenosaunee and Anishinaabek. We acknowledge and thank the diverse Indigenous Peoples whose footsteps have marked these territories on which peoples of the world now gather.

Library and Archives Canada Cataloguing in Publication Title: Justice, rights, and toleration : essays for Richard Vernon / edited by Neil Hibbert, Charles Jones, and Steven Lecce. Other titles: Essays for Richard Vernon Names: Hibbert, Neil, 1976– editor. | Jones, Charles, 1963– editor. | Lecce, Steven, 1970– editor. | Vernon, Richard, 1945– honoree. Description: Includes bibliographical references and index. Identifiers: Canadiana (print) 20230482236 | Canadiana (ebook) 20230482279 | ISBN  9780228019336 (cloth) | ISBN 9780228019589 (ePDF ) | ISBN 9780228019596 (EPUB ) Subjects: LCSH : Vernon, Richard, 1945– | LCSH : Human rights. | LCSH: Justice. | LCSH: Toleration. | LCSH: Political science. | LCGFT: Festschriften. Classification: LCC JC 578 .J 89 2024 | DDC 320.01/1—dc23

Set in 11/14.5 Adobe Caslon Pro Book design & typesetting by Garet Markvoort, zijn digital

Contents

Introduction: Themes in Richard Vernon’s Work 3 Neil Hibbert, Charles Jones, and Steven Lecce Part One: The Rights of Children, Parents, and Future Generations 1 Are Children Autonomous? Common Normative and Empirical Mistakes 27 Sarah Hannan 2 Children’s Interests, Liberal Multiculturalism, and the Right to One’s Own Culture 48 Andrew M. Robinson 3 Future Generations and the Ideal of Non-domination Mira Bachvarova

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Part Two: Human Rights and Global Justice 4 Human Rights and Normative Agency Charles Jones

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5 Cosmopolitan Regard in the Global Value Chain Kishanthi Parella

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6 Justice, Democracy, and the Legitimacy of the International Criminal Court 133 Kirsten J. Fisher

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7 Territorial Right of States and the (In)justice of Immigration Control 160 Margaret Moore Part Three: Political Disagreement and Toleration 8 Political Obligation, Fairness, and Involuntary Benefit Neil Hibbert 9 Is Moral Compromise Feasible? Friderike Spang

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10 Hate Speech, the First New Nation, and the Peaceable Kingdom: Lockean Ideas in Canada and the United States 236 Samuel V. LaSelva 11 Beyond Toleration? Steven Lecce

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Works by Richard Vernon Bibliography 299 Contributors 317 Index 321

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Justice, Rights, and Toleration

Introduction Themes in Richard Vernon’s Work Neil Hibbert, Charles Jones, and Steven Lecce Richard Vernon, Distinguished University Professor of Political Science at the University of Western Ontario, is not only the most wideranging political theorist in Canada, having written ten books and forty articles on topics that span both political science and philosophy; he has also made significant intellectual advances in almost all the areas on which he has written: liberal democracy, toleration, global justice, and the British and French traditions of political thought. To honour his remarkable career, our collection consists of original papers written by a group of scholars who, at some point during their careers, had the privilege of studying under or working with Richard. Together they represent a small appreciation for the enduring impact of Richard’s mentorship and friendship on the many political theorists who followed in his footsteps. Richard Vernon has no equal in the range and quality of work in political theory by a Canadian in recent decades. Throughout his career, he has been a leader and pioneer on a broad range of topics, shaping the fields of political theory and political philosophy in important ways. We describe his scholarship in the history of political thought, in key areas of political philosophy, and in contemporary political theory, especially on the topics of liberal democracy, toleration, and global and intergenerational justice Liberal Democracy A significant element of Vernon’s contribution concerns the theory and practice of liberal democratic states. His book, Political Morality: A Theory of Liberal Democracy, examines the nature and coherence

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of possible justificatory values of liberal democratic societies, and related questions about the scope of legitimate political authority within them. An earlier book, The Career of Toleration: John Locke, Jonas Proast and After, winner of the 1998 C.B. Macpherson Prize, bridges historical and contemporary debates regarding the idea of toleration in the politics of pluralistic societies. At base, Vernon’s account of the justification of liberal democratic institutions rests on the value of persuasion and the legitimating function of an ongoing dialogic equality between citizens. Vernon’s theory of liberal democracy is developed against the widely held view that, despite their historical conjunction in modern Western societies, liberalism and democracy are distinct conceptions of the nature of political authority. As a result, liberal democratic societies contain normative inconsistencies and perpetual value trade-offs without a “common measure” to guide deliberation and decision-making in cases where they come into conflict. For democrats, liberal rights are frequently seen as illegitimate constraints on possible political outcomes in a self-determining political society. In cases where certain liberal rights are justified as limiting procedural outcomes, these are often theorized as pre-conditions for effective democratic self-determination and open to ongoing interpretation by a democratic public.1 Liberals meanwhile are frequently motivated by concerns of the oppressive tendencies of majority rule. Although they are overwhelmingly supporters of employing some democratic procedures, it is generally support of a derivative sort. For many liberals, democratic institutions are justified instrumentally as mechanisms to give expression to more fundamental values, like equality or justice, in a society’s decision-making institutions. As Vernon puts it, on accounts such as those of John Rawls or Ronald Dworkin, “democracy can be put to use by a liberal principle of legitimacy … [but they do] … not treat democracy as an idea with its own internal requirements.”2 The result is often a heavily limited scope of democratic authority. Against the conceptual separation of democratic and liberal freedoms, and against those for whom this leads to the need for balancing them against each other, Vernon argues that we should theorize them

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as “mutually implicated” and understand liberal democracy as “a single political conception” that is able to meet the “burdens of legitimation” in the circumstances of modern political societies.3 Liberal democracy as a single political conception is, Vernon argues, based on the normative requirement of persuasion – “as far as possible states should rest on persuasion rather than compulsion.”4 Both liberals and democrats are committed to rationality and self-determination, and politically they share the view that “people should be required to do only what they are persuaded is right.”5 Although liberals and democrats have often proposed very different institutional responses to this justificatory idea, Vernon goes on to demonstrate the compatibility of their institutional imperatives. The connection is the legitimation needs of modern political societies for “defensible” and “generalizable” decision-making and regulatory mechanisms that are “communicable to people with personal differences and independence of judgement.”6 In working to address these needs, democracy and liberalism are appropriately theorized not as opposing ideas but as “two sides of the same coin.”7 The emergence of liberal democracy, Vernon argues, should be understood against the specific background conditions of an “alreadyconstituted political community, which undergoes a contraction of authority” giving rise to an increasingly pluralistic situation “in which political legitimation is needed.”8 With the contraction of authority in modern societies – i.e., the disappearance of “privileged bearers or interpreters of truth” on whose status it is possible “to appeal, simply to what is authoritatively right” – political discourse must come to possess its own authority. This is so because “mutually acceptable arrangements must replace what was once authoritatively prescribed.”9 The condition of modern political society is therefore one in which “the formation of opinion … will determine outcomes” and, as a result, “discursive exchange is thought to be consequential.”10 Vernon’s account of the morality of liberal democracy draws a stimulating distinction between the legitimation of politics and legitimation by politics. On the latter, legitimation is a “process in which conclusions are given validity because they have been politically reached” through a practice of persons advancing their claims “under conditions in which

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objections can be made and evidence demanded.”11 This conception of political legitimacy instrumentally justifies majority rule on the basis of its capacity to generate reason-giving and persuasion in political discourse, and to produce political outcomes distinguished by “a publicly available array of critical argumentation and evidence.”12 Ideally majority rule functions to count up “how many people have been persuaded,” and is instrumentally justified on these grounds.13 Given the nature of procedural forms of decision-making, however, the majority principle cannot justify itself, but instead rests on the more general considerations of the possibly unanimous value of authorization through persuasion, which the majority principle at least has the capacity to track. But, Vernon argues, if validating the use of a procedure draws on a prior, more general, agreement, “it must also surely be true with respect to its scope.”14 And, moreover, “no sensible person would authorize one process to decide everything” as, knowing we may end up in a democratic minority, we “do not wish to live under a stigma of authoritative and public disapproval.”15 Thus the same consideration that justifies the majority principle in political decision-making consistently limits its range, circumscribing the political agenda itself. Bringing these arguments together, Vernon’s theory of liberal democracy presents a “view of constitutional democracy in which protections for minorities are derived from the internal requirements of the majority principle.”16 On this account, both the majority principle and its limited scope are based on the same normative grounds that “people should not be required to act against their beliefs” but on reasons they have been persuaded of through a political discourse grounded in dialogic equality.17 Toleration Vernon’s image of liberal democratic politics that secures political legitimacy through ongoing discursive exchange between diverse citizens is a conception of politics that is distinct from one in which political authority is based on “right beliefs” in other “norm-generating spheres” – be they “moral or epistemic or theological” – and becomes

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particularly salient in his important work on the idea of toleration.18 The focus of Vernon’s work on toleration is the thought of John Locke, his long critical exchange with a contemporary critic, Jonas Proast, and extends to reflection on the thought of J.S. Mill and current work being done on toleration and deliberative democracy. The result is a subtle and forceful body of scholarship on the interminable challenges and fragile opportunities for peaceful and just co-existence in pluralistic societies. Proast’s primary line of critique of Locke’s defence of toleration of religious disagreement is the idea that “the whole strength” of Locke’s case is based on an argument from the nature of belief.19 In short, the argument holds that persecution is irrational because it cannot genuinely persuade persons to change their minds and sincerely hold certain kinds of beliefs. It is a contingent argument for toleration, and if it is somehow shown that coercion can “work” in this regard, Locke’s argument for toleration loses its force and permits using the state as truth-advancing mechanism, such as it may be. According to Vernon’s analysis, this line of critique misses the core of Locke’s argument for toleration and its connection to a more general account of political legitimacy in pluralistic societies based on dialogic equality between citizens. For Vernon, Locke convincingly develops a normative rather than a sociological theory of the state, according to which the scope of its authority is “defined by something other than the empirical limits to its capacity.”20 Limiting the authority of the state short of functioning as a “truth-seeking institution” does not imply skepticism, as Proast maintains. Instead, Vernon argues that Locke’s account of toleration hinges on the distinction between “being right” and “having a right.”21 As Locke puts the point regarding state officials holding diverse moral and theological views, “I do not say they judge as right, but they are by as much (i.e., Proast’s account of political authority) right judges.”22 This distinction establishes the unique nature of justifying political institutions, and the “special considerations that obtain when one person authoritatively changes the life of another.”23 Those, such as Proast, who link the scope of political authority to state capacity, “see nothing distinctive about the political realm at all.”24

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Indeed, Vernon argues, it is an apolitical view to hold that all actors are to be bound to a “single perspectiveless notion of what is knowable or probable or unknowable when in reality the political problem is that actors differ exactly in their perceptions of what is and is not certain.”25 Prohibition of dissenting views by the state amounts to “an authoritative condemnation of someone’s life or belief on behalf of political society as a whole and ultimately sanctioned coercion.”26 Failing to extend toleration in this way cannot deliver political legitimacy because it “puts an end to the discursive relationship” on which legitimation is based in pluralistic societies. Locke’s social contract model, Vernon argues, can therefore be seen as a setting up a reciprocal “device for enforcing discursive equality.”27 Throughout his exchange with Proast, Locke frequently asks him to consider “whether the claims implied in his policy could be adopted by both parties as the basis of a contract they could make and keep.”28 Proast, however, “is quiet simply unable to grasp the point of Locke’s demand … [for his] model does not take seriously the conditions imposed by human plurality and thus makes no distinction between discourse and self-reflection.”29 The dialogic element of Locke’s contract, Vernon argues, goes beyond selfinterested bargaining and requires a “principled self-detachment arising from the recognition of background equality.”30 In attempting to set up “relations of authority” that are mutually acceptable, dialogue can be theorized “as a model for reciprocity” between equal citizens in establishing the terms of their co-existence.31 Toleration is required to maintain dialogic relations between citizens and to preserve a legitimation situation in which shared institutions, and the demands made through them, can “pass a publicity test” of reciprocal reason-giving.32 Justice within and beyond the State In the preface to his 2005 book, Friends, Citizens, Strangers, Vernon reflected on the “difficult” transition he undertook in his scholarly work from “intellectual history to the (analytical) version of contemporary political theory.”33 As he was turning towards contemporary political

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theory, he noted further that, “as it happens,” leading voices in that field “were seriously questioning the idea that the state formed the essential and unbreakable frame of normative inquiry, and were introducing basic issues of global justice.”34 This confluence of personal and disciplinary developments provided Vernon with a new context to explore problems and questions that had been latent in the background of his previous inquiries into intellectual history. His first forays into intellectual history took the form of engagement with the “fiercely localist critique” of the state in the French anarcho-socialist tradition, concerns of political scale more generally, and eventually extended into the British liberal tradition (Locke and Mill in particular). Transitioning to contemporary political theory at the time that the field was calling into question the privileged normativity of the state as the site of moral and political obligations provided fresh opportunities for Vernon to address questions that, “looking back (had) always engaged” him – “should we put locality before citizenship, citizenship before human obligations?”35 The result of this fortuitous opening of untilled intellectual terrain was a sustained and powerful engagement with questions of the relationship between, and prospects for reconciliation of, particular and universal obligations and ultimately of statist and global conceptions of justice. Across the universalizing and particularizing thought of (fittingly) four English and four French early modern and nineteenth century writers and theorists, Friends, Citizens, Strangers begins its exploration of these concerns by tracing the problems of how different levels of attachment make “rival claims on moral agents,” and how different attachments and claims themselves affect the very identity of involved moral agents. This rich and diverse engagement yields the problem for political theory of the place and content of political attachments in the wider array of moral claims and identifications. In this work, Vernon shows how the problem of relationships in morality undergirds central concerns facing an account of political obligation and communities. Such problems pertain to both the strength of duties of justice within and beyond political societies, as well as the nature of obligations and

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restrictions within political societies (e.g., how far, if at all, dissent from, or critique of, received communal beliefs and practices should be tolerated). The final third of that work turns to these concerns of political theory in contemporary thought and contexts. It is here that Vernon’s account of reconciling universal and particular claims begins to come into focus, and starts a program of inquiry and development of a contractualist account of justice within and beyond states that culminates in his 2010 book, Cosmopolitan Regard: Political Membership and Global Justice. In Friends, Citizens, Strangers, he begins this project by establishing the position that if we are to establish a “convincing account, as we must, of the limits of either state power or social convention” we require an over-arching morality that is cosmopolitan – “the morality of strangers.”36 He then sets to the task of finding “morally secured” places for the normative claims of citizenship and friendship (a category that captures a range of sub-state and personal relations and associations) within cosmopolitanism. He argues that our different levels of moral “attachment or obligation” share a “common structure” by virtue of receiving their generation through the mutual waiving of prior and broader moral rights, discretions, and entitlements.37 The move from cosmopolitan morality to justified particular obligations between co-citizens proceeds along the lines of a highly compelling re-working of Locke’s contractualist account of the transition from cosmopolitan morality to the formation of systems of justice within closed political societies. Vernon presents Locke’s account of the social contract as consisting of waiving background liberties and entitlements to rights enforcement, which in turn creates new, and localized, vulnerabilities against which the status of citizenship protects us. Entering into a political association to address the “inconveniences” generated by partiality in situations of non-cooperation, Vernon argues, is essentially a leap of faith – a “risk-taken” – that is at once risk mitigating and making. In order to be an efficient move from non-association, special and particular obligations between fellow members are needed to create the required condition of “implied trust that the liabilities flowing from a scheme of legal regulation and public

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policy (that) will lead on balance to improve rather than to diminish one’s life chances.”38 As mentioned, Vernon’s contractualist account of particular obligations of justice between citizens is further developed in a series of papers leading up to Cosmopolitan Regard. A 2002 paper in Journal of Political Philosophy, that is re-visited as a chapter in Friends, Citizens, Strangers, “What Is Crime against Humanity?,” lays the groundwork for the account of global justice developed in Cosmopolitan Regard through the idea of re-iteration of the contractualist account of particular obligations.39 Because particular obligations of justice in political societies flow from cosmopolitan morality, they also remain, on Vernon’s account, powerfully constrained by it – our right to form exclusive systems of political justice and legitimacy depends on the ability of others to do the same. The idea of a crime against humanity, and the duties it triggers for outsiders, is a deeply salient example of how the right to form exclusive and legitimate political projects brings with it iterative duties to non-members when their similar right is thwarted in disastrous fashion. A crime against humanity, Vernon argues, is a unique by-product of creating states as it “involves a derogation from national sovereignty … (that) … undermines legitimacy in an especially radical way.”40 The very idea of a crime against humanity itself comes “into being with the creation of states” because of three unique properties or capacities that are constitutive of state power: large-scale administrative capacity; local authority and “habits of obedience”; and, territoriality which denies attacked groups “either flight or protection.”41 In such cases, the powers that justified the state in the prior iteration of contractual waiving, are subsequently de-legitimized by virtue of being “perversely … instrumentalized by it … and brought to bear on the guiltless.”42 With this “radical undermining” of legitimacy, “the power to judge and to criminalize must migrate elsewhere,” bringing with it new kinds of obligations of global justice for non-members. These ideas of domestic and global justice are developed in Vernon’s 2010 book, Cosmopolitan Regard. This study begins by re-asserting the cosmopolitan nature of “over-arching morality,” through a highly compelling engagement with John Horton’s defence of associative

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obligations (that began as a critical exchange in Political Studies).43 The discussion then turns to the particularity problem of how, against a cosmopolitan moral backdrop, persons can legitimately form exclusive political projects, in which special regard is shown for fellow members. To set up a fuller presentation and defence of his waiver model of contractualist thought, Vernon critically engages with leading accounts of moving from universal morality to particularized political obligations, and develops the highly useful evaluative metric of the “asymmetry problem” according to which an account of political obligation must roughly cover the functions performed by political entities that represent the basic idea of the modern state. Through a synthesis of Locke and Jean-Jacques Rousseau’s contractualist accounts of justifying political authority, Vernon presents a theory of social justice that works to make the move from isolation to association efficient – a justified political society must pass an “on-balance” test in order for it to be reasonable for persons to waive their moral entitlements and liberties in exchange for political protections.44 This generates special obligations amongst members to set up and support constitutional and quasiconstitutional structures that mitigate against “background risks” of associating politically (risks of exposure to coercion, majority domination, and economic vulnerability) as well as against “dynamic risks” involved in sharing political space and being exposed to the normative judgements of associates that “fall through the constitutional net.”45 Because co-members are complicit in exposing one another to risks that are antecedent to its formation, setting up protective mechanisms effectively particularizes political obligations – “the shared pursuit of security creates heightened risks in view of which citizens can reasonably be expected to have heightened care for those who share the risks with them.”46 This, however, is not the end of the legitimating story, as the cosmopolitan morality Vernon starts out with requires an iterative turn of contractual justification of particular obligations to account for the interests of non-members. The re-iteration of the initial waiver creates a further condition of legitimacy on exclusive systems of political obligation. Vernon argues that the legitimacy of our risk-mitigating

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political association depends on us showing “cosmopolitan regard” to the interest of excluded persons in forming their own associations. If this interest is thwarted for one reason or another, the legitimacy of our exclusive political association comes to depend on us discharging further obligations to distressed or burdened people and societies – Vernon calls this condition of legitimate particularity the “iterative proviso.” Such obligations, rooted as they are in the conditions of the legitimacy of exclusive systems of political association, are the grounds for Vernon’s account of global justice. Global justice is distinctly political in nature, and the final third of Cosmopolitan Regard turns to a discussion of how its institutional requirements can help us make sense of the common moral justification of international political practices and structures, including international criminal law, economic aid, and humanitarian intervention. The end result is a highly original and compelling account of how the respective obligations of domestic and global justice are rooted in the legitimation of membership in exclusive systems of political association. Temporal Justice Beyond his distinctive approach to domestic and global justice, Vernon makes several key contributions to the debates about what he calls “temporal justice,” his label for the issues raised by what we owe to past and future people.47 His approach combines backward-looking and forward-looking intergenerational concerns. In Historical Redress: Must We Pay for the Past?, Vernon considers the reasons for and against historical redress, that is, righting historical wrongs – including genocide, colonialism, slavery, and theft of cultural goods – by making up for losses suffered by victims of such wrongs. He distinguishes three types of redress – restitution, compensation, and apology – and shows how each may figure in specific cases. For instance, Indigenous peoples have demanded the return of stolen land (i.e., restitution); compensation for their loss of culture, property, and livelihood; and apology for the indignities visited on them by colonial settlers.

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Resistance to claims for historical redress appeal to several sorts of reason: that focusing on past injustice precludes properly addressing present injustice; that the moral ledger is complicated by the many things that have happened between then and now; that standards of morally acceptable conduct can change over time, so that what looks obviously wrong to us now was in fact accepted by others in centuries past; that the perpetrators and victims of historical injustice – the group to be held responsible and the group allegedly entitled to redress – arguably no longer exist; and that some seemingly important historical injustices are ignored because their victims’ descendants do not now self-identify as a group with political agency. Now these forms of resistance to redress can and should be questioned, and Vernon’s work takes us through the range of considerations relevant to reaching a reasoned judgement on the matter. Beyond his expert conceptual mapping of the historical redress terrain, Vernon considers some key arguments that must be thought through if we are to understand and respond intelligently to claims for historical redress. He critically evaluates five ideas that serve to link people across time. These ideas can be summarized in five questions: (1) Do the victims of injustice have rights that survive their death? (2) Does redress demand that today’s beneficiaries of historical injustice should no longer receive those benefits? (3) Are national communities inherently intergenerational and therefore open to claims of historical injustice as part of their projects of self-understanding? (4) Do states by their nature give rise to citizens’ collective responsibility to right historic wrongs?, and (5) Does past injustice matter only insofar as it has produced present injustice?48 As one so often finds, Vernon takes a complex set of concerns and produces reasoned clarity that advances the discussion and sets the terms of ongoing debate. In Historical Redress, his main substantive conclusion is that “historical redress should matter to us because we should be concerned about transmitting the wrongs of the past to future generations.”49 In Justice Back and Forth, this theme is developed in more detail and defended in several ways, initially by considering as a single subject the backwardlooking question of historical redress with the forward-looking question of intergenerational justice. The question is this: What do we owe

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to people who are not here now, “those who come before and after us in the stream of time”?50 Vernon distinguishes a strong communitarian view from a weak contractualist view about intergenerational continuity.51 The communitarian position affirms strong connections between a given society’s past, present, and future generations that give rise to duties to preserve and pass along the values and traditions that define that intergenerational society. Contractualism, on the other hand, links generations in the same way it links individuals living at the same time, namely, by determining “the moral demands that one person can justify to another.”52 The contractual idea appeals to mutual agreement to justify a set of rights and duties.53 So the problem for contractualist accounts of intergenerational justice is that it does not seem possible for members of different generations to mutually agree to the terms of a contract. Vernon’s solution to this problem of mutual agreement is the view he labels “iterative contractualism,” the idea that what parties to a contract can agree to is constrained by the interests and contracting powers of those outside the agreement.54 Two points are worth making here. First, that unlike standard accounts, Vernon’s version of contractualism is not tied to reciprocity. Instead, it begins with the fact that our actions can affect others and demands that we aim to “track and mitigate vulnerability.”55 Second, contractualism is not moral bedrock since it presupposes a commitment to protecting basic human values that both make contracts possible and provide grounds for us to criticize them.56 In the end, we are presented with an elegant new form of the contractual idea that retains its moral force while expanding its scope across generations. Along the way, Vernon defends a distinctive position on collective civic complicity for past wrongs57; a skeptical view of receiving benefits as grounding duties to compensate victims58; and a general case for concluding that “the prime reason for forms of redress derives from present and future needs.” Backward looking justice is best understood by considering “the needs of people who live or will do so one day.”59 A distinctive aspect of Vernon’s account of forward-looking justice is his work on the rights and duties of parents and children.60 Here he defends “an ideal of parental responsiveness” that recognizes children

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as “distinct centres of personal experience,”61 along with the thesis that the political competence of parents should include a commitment to social democracy to protect children from the large-scale effects of the many individual procreative acts that produce the next generation.62 More generally, Vernon’s future-focused discussion asks whether the present generation may constrain future generations by imposing constitutional provisions on them. His answer appeals to the core notion of the necessary conditions of individual and collective freedom, in which the present generation should create the institutional conditions for those in the future to be properly self-determining.63 Overview of the Book The book is subdivided into three parts. The three chapters in part one address the rights of children, parents, and future generations. In “Are Children Autonomous? Common Normative and Empirical Mistakes,” Sarah Hannan builds on previous work she did with Vernon the autonomy of children and challenges a dominant way of thinking about children’s rights by claiming that their well-being consists in, or is promoted and hindered by, the same sorts of things as adults’ well-being. On this basis, she rejects the notion that children are incapable of self-governance, and thus are not owed any autonomy rights, or at least not owed any autonomy rights that closely resemble those of adults. Hannan begins her chapter by clarifying what she means by “child” and “autonomy” before drawing attention to four errors that theories must avoid in determining whether or not children are autonomous. Avoiding these errors leads us to conclude that, under the right circumstances, some children have the capacity for self-governance and, because of this, fundamental changes are required in the character of our interpersonal interactions with children, in our legal treatment of children, and with the moral theories that inform our conduct in these areas. In “Children’s Interests, Liberal Multiculturalism, and the Right to One’s Own Culture,” Andrew M. Robinson presents a novel defence of the rights of cultural minority groups. The starting point of Robin-

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son’s argument is Will Kymlicka’s celebrated defence of liberal multiculturalism in which individual autonomy plays a key role in justifying ethnocultural minority rights. But Robinson shifts the focus to children’s autonomy interests, arguing that there are two conceptions of autonomy at issue and only one of them, autonomy-as-choice, implies that children’s interests conflict with parents’ interests. Autonomyas-choice is unlikely to support minority cultural rights, but Robinson argues that the other conception, situated autonomy, enables us to identify children’s interests in the survival of their parents’ cultural communities. If this is the case, then there is an autonomy-based argument for minority rights to one’s own culture. Building on Vernon’s account of temporal justice, Mira Bachvarova’s “Future Generations and the Ideal of Non-domination” argues that theories of intergenerational obligations must go beyond distributive concerns and address power relations that endure over time. To do so, she draws on the civic republican tradition to incorporate the ideal of non-domination into temporal justice. Focused principally on duties to future generations, she argues that non-domination identifies domination as a concern across, rather than between, generations. The endurance of domination is an intergenerational concern and grounds an obligation for current generations to provide future generations with sociopolitical structures that allow them to constrain domination. Thus, although her concern is what is owed to future generations under the principle of non-domination, Bachvarova’s argument also shows that such an account will be backward looking. Part two contains four chapters centred around human rights and global justice. In “Human Rights and Normative Agency,” Charles Jones argues that human rights are best justified by appeal to the notion of normative agency. Given the centrality of individual autonomy to this notion, Jones explains why autonomy – the capacity to decide for oneself amongst the values to pursue in one’s life – is itself valuable and how it can be defended against a recent, powerful objection elaborated by Sarah Conly. Nevertheless, he identifies the inadequacies of an exclusively autonomy-based defence of human rights and explains how other key values beyond autonomy, like vulnerability and

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sociability, can be added to produce a “pluralist” justification of human rights. Jones therefore agrees with Will Kymlicka that we should reject “human supremacism,” since we share basic interests with non-human animals who lack our capacity for autonomy, but he disagrees with Kymlicka’s claim that autonomy is therefore to be rejected as a foundation of human rights. In “Cosmopolitan Regard in the Global Value Chain,” Kishanthi Parella considers a set of questions and issues that could constitute part of a “research agenda that emerges” from Vernon’s theory of cosmopolitan regard. Her chapter questions the central role that the state plays in Vernon’s account of collective risk mitigating, and benefitproducing, projects. Based on a presentation of the characteristics of transnational corporations, Parella argues against the idea that it is only states that give rise to special obligations under the background morality of cosmopolitan regard. She notes that transnational corporations are sources of both benefit and risk for their members (those at various stages of global value chains), and in many cases have coopted the risk-enhancing features of states while also filling in many underperformed tasks of benefit production in societies with weak states. She imagines a (perhaps not too far off ) hypothetical world in which persons outside a successful statist form of securing cooperative benefits receive the bulk of their welfare (and risk exposure) from corporate, non-state entities. What does Vernon’s iterative contractualism require in such a situation? Parella resists prioritizing the statist implications of enhancing governmental capacity in such cases and suggests cosmopolitan regard entails maintaining concern with baseline conditions of benefit provision, and risk-mitigation, rather than privileging a particular means of their delivery. The result is a provocative consideration of the types of special obligations that might hold between members of global value chains, how these “challenge the boundaries of firms” and the implications for the idea of membership posed by the possibility of a plurality of special obligations. Kirsten Fisher’s chapter, “Justice, Democracy, and the Legitimacy of the International Criminal Court,” explores the relationship between two aspects of political legitimacy in the functioning and effectiveness

Introduction 19

of the International Criminal Court “as an arbiter of global just behaviour.” While the normative and attitudinal dimensions of legitimacy are often treated apart from one another, Fisher identifies important points of intersection in the practice of the icc . With a focus on African states, the power of the court, she argues, is undermined by an absence of attitudinal legitimacy that itself flows from a lack of equal respect and democratic responsiveness in those institutionalized relationships. She asks whether the icc can or should deepen its democratic responsiveness to the demands for legitimacy from African states. While arguing for deepening the icc ’s respect for African populations, her chapter stops short of recommending democratic responsiveness as deference, given domestic concerns of democratic responsiveness in many African states, and related concerns of conflicts between justice and democracy in how the court operates. In “Territorial Right of States and the (In)justice of Immigration Control,” Margaret Moore considers the grounds for states’ rights to territory and what this implies for their control over immigration. She begins by outlining and questioning two dominant theories of states’ territorial rights, the Lockean/libertarian and the Kantian, both of which she finds wanting as justifications for those rights. Moore’s positive argument supports an alternative account of jurisdictional authority that, she argues, can overcome the shortcomings of the Lockean and Kantian accounts while presenting on its own terms a coherent and attractive defence of territorial rights and immigration control. An important part of Moore’s case is her response to two prominent objections based on (1) individual rights to free movement, and (2) the implications of borders for global distributive justice. In general, her approach frames the debate about territory and immigration in terms of a critique of the received view of state sovereignty itself. In part three, four chapters address political disagreement and toleration. Neil Hibbert’s “Political Obligation, Fairness, and Involuntary Benefit” picks up on Vernon’s treatment of justified political obligations, and in particular his account of how persons might reasonably reject cooperative benefits, with the effect of releasing them from the obligations needed for their provision. He applies this idea to the

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provision of non-excludable public goods that even if rejected are nevertheless received. Public good provision thus introduces a troublesome dilemma for theories of political obligation: persons can either receive cooperative benefits without incurring the burdens involved in their production, or persons can have obligations foisted upon them to contribute to the provision of public goods they do not want, or perhaps even perceive as beneficial. Building on a critique of existing attempts to reconcile the ideal of voluntary receipt or rejection of cooperative benefits with the nature of public goods, Hibbert’s chapter outlines an account of a possible role of fairness in theories of political obligation that comes in at an earlier and more general procedural level of legitimating cooperative institutions. This has the effect of diminishing concerns of fairness in particular cases of public good provision. Friderike Spang’s “Is Moral Compromise Feasible?” addresses the apparent dilemma that compromise seems to be necessary yet impossible to achieve. In an impressively interdisciplinary discussion, she argues that recent cognitive science research suggests that moral judgments have an emotional basis, from which it follows that human beings will be affectively averse to moral compromise. This is a fundamental problem in the political sphere, where compromise might seem the most promising approach to dealing with citizens’ conflicting moral views. Given affective aversion to compromise, Spang argues that there are two main solutions: pragmatic and principled compromise. Her argument is that, while pragmatic compromise is unlikely to overcome the aversion problem, principled compromise can do so if it is motivated by what she calls an “affective attitude of respect” for each other as fellow human beings. In “Hate Speech, the First New Nation, and the Peaceable Kingdom: Lockean Ideas in Canada and the United States,” Samuel LaSelva engages with one of Vernon’s most sustained areas of interest, the idea of toleration. His chapter reconsiders the dominant view of foundational differences between American and Canadian constitutionalism by examining the issues of free speech and hate speech. Against the dominant view of the American constitution as the institutionalization of Lockean toleration (compared to the Tory, or anti-Lockean,

Introduction

21

nature of the Canadian model), LaSelva suggests that Locke’s view does not necessarily lead to the American model of unrestricted free speech. Drawing from Locke’s Letter Concerning Toleration, he recovers Lockean grounds for restricting hate speech in the idea of “pluralism as deep diversity.” With this element of Locke’s account of toleration in clear view, LaSelva holds that the Canadian experiment with multiculturalism and hate speech regulation is closer to Lockean liberalism than the dominant “Tory experiment in counterrevolution” understanding of Confederation and post-Charter jurisprudence. In recent years, the classical idea of toleration has come under attack from critics who think that, for various reasons, that idea is either inadequate or irrelevant to our times. Some of liberalism’s contemporary defenders have responded to this attack by maintaining that the problems in question, while real, motivate not the abandonment or the transcendence of toleration but rather its reinvention in the guise of equal recognition. On this view, to “tolerate” someone is to accommodate some identity-related and group-based aspect of a person’s conception of the good life. In “Beyond Toleration?” Steven Lecce asks whether or not this reimagining is, in fact, an improvement over the classical liberal notion of toleration and he concludes that it is not. Lecce begins his chapter by sketching the classical view before outlining how and why that view might sit uncomfortably with central features of contemporary liberal-democratic theory. The remainder of Lecce’s chapter outlines and then evaluates the core case for equal recognition; it concludes that (1) equal recognition raises more problems than it solves, and (2) the classical view of toleration has available to it additional resources that might be deployed to defuse the worries that motivate equal recognition. For Lecce, the failure of equal recognition does not mean that democratic states should never accommodate minorities. But, on his view, we should think of justified accommodations as remedial measures and compensation for past and present violations of liberal principles of justice, where those principles do not include “recognition.”

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Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Vernon, Political Morality. Ibid., 6. Ibid., 79. Vernon, “Liberals, Democrats and the Agenda of Politics,” 295. Ibid., 297. Vernon, Political Morality, 19. Ibid., 19. Ibid., 175. Ibid., 19. Ibid., 17. Ibid., 36. Ibid., 69. Ibid., 13. Ibid., 14. Vernon, “Liberals, Democrats and the Agenda of Politics,” 301–7. Vernon, Political Morality, 75. Vernon, “Liberals, Democrats and the Agenda of Politics,” 308. Vernon, The Career of Toleration, 5; see also Vernon, Locke on Toleration, and Vernon, “Lockean Toleration.” Vernon, Career of Toleration, 30. Ibid., 32. Ibid., 59. Quoted in ibid., 59. Ibid., 5. Ibid., 64. Ibid., 68. Ibid., 142. Ibid., 150. Ibid. Ibid., 150–1. Vernon, “Lockean Toleration,” 223. Ibid., 220. Ibid., 222. Vernon, Friends, Citizens, Strangers, vii. Ibid. Ibid. Ibid., 13.

Introduction 23

37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60

Ibid., 257–8. Ibid., 258. Vernon, “What Is Crime against Humanity?” Vernon, Friends, Citizens, Strangers, 192–3. Ibid., 193. Ibid., 194. Vernon, Cosmopolitan Regard ; Vernon, “Association by Obligation?” Vernon, Cosmopolitan Regard, 68. Ibid., 72. Ibid., 113. Vernon, Justice Back and Forth, 3. Vernon, Historical Redress: Must We Pay for the Past?, 13–14. Ibid., 16. Vernon, Justice Back and Forth, 3. Ibid., 5–8. Ibid., 6. Ibid., 3, 6. Ibid., 7, 19, 233–8. Ibid., 7. Ibid., 190–1. Ibid., 217–18. Ibid., ch. 3; 218–19. Ibid., 221. Ibid., 9–10, and chs 7–8; Hannan, Brennan, and Vernon, eds, Permissible Progeny? 61 Vernon, Justice Back and Forth, ch. 7. 62 Ibid., 223, and ch. 8. 63 Ibid., 223–4, and ch. 9.

Part One The Rights of Children, Parents, and Future Generations

Chapter One Are Children Autonomous? Common Normative and Empirical Mistakes Sarah Hannan Introduction Children are unlike adults in many ways. For instance, children are typically smaller, louder, and more fun than their adult counterparts. Despite these and other significant differences, I’ve argued that children are more similar to adults than they are different. Specifically, I think that children’s well-being consists in, or is promoted and hindered by, the same sorts of things as adult’s well-being.1 This view diverges from one suggested by Patrick Tomlin, which holds that children are to adults as caterpillars are to butterflies.2 On Tomlin’s view, what makes the lives of children and adults go well is so different that they’re best understood as different sorts of creatures. Barring misfortune, a child will become an adult, just as a caterpillar will become a butterfly, but these different life-stages are characterized by different accounts of well-being. Conversely, I maintain that children are to adults as saplings are to trees, which is to say less mature versions of the same sort of creature because the same account of well-being applies to each. Insofar as adults and children have similar well-being needs, we ought to grant them similar well-being-protecting and -promoting entitlements, which I cash out in terms of moral rights. However, one might reasonably insist that adult self-governing abilities, and thus their corresponding autonomy rights, are quite different from those of children.3 David Archard labels the strongest version of this view, the position that “adults can and should be permitted to make choices as

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to how they lead their lives” but that “children cannot and should not be permitted to make such choices,” the “basic view.”4 The basic view has been challenged, but it, and weaker versions of it (which continue to permit significant control of all children on the grounds that they lack powers to self-govern), still play a large role in how we interact with children, and in the philosophical views that address our everyday practices. In this chapter I join those, like Archard, challenging the notion that children are incapable of self-governance, and thus not owed moral or legal autonomy rights, or at least not owed any autonomy rights that closely resemble those of adults.5 The second section clarifies what I mean by the terms “child” and “autonomy.” The third section draws attention to four errors that theories must avoid in determining whether or not children are autonomous. The final section lays out some of the most important upshots of avoiding these errors. The first upshot is that it’s likely that some children have the capacity for self-governance. They’re capable of autonomous choice, under the right circumstances. In this respect, their moral status and some of their rights are the same as most adults.’ Second, if we respect the autonomy rights that children have in virtue of their potential for autonomy – that is, if we treat them differently than we do at present – then it is likely that even more children, at even younger ages, will be capable of self-governance. So, while it’s true that children are generally less able to author their own lives than adults, they are often far more capable of self-governance than is recognized. Acknowledging this is important because it requires us to change the character of our interpersonal interactions with children, our legal treatment of children, as well as the moral theories that inform our conduct in these areas. What Is a Child and What Is Autonomy?6 Before saying anything about the nature of children’s autonomy, it’s necessary to define what I mean by “child” and by “autonomy.” I use “child” as a chronological designation. Specifically, children are humans less than eighteen years old. This fits with common usage of the term,

Are Children Autonomous? 29

and identifies a group of people who are often treated differently because of their age. For instance, many people under eighteen face restrictions on whether they can vote, seek employment, marry, consume alcohol, drive, consent to sex, take control of their medical care, remove themselves from formal education, and so forth.7 Using the age-based definition allows me to challenge what I think is mistaken thinking about children, and also the unjust treatment of children that follows from it. We can ask whether children who are four years old, ten years old, sixteen years old, and so forth are capable of autonomy, and if so, what moral rights they have and which legal rights they should be granted. I’m concerned here with personal autonomy, where “autonomy” refers for the capacity to govern one’s own life. An autonomous agent is the chooser with the authority to settle how her life will go, who makes choices that determine (at least in part) her life’s trajectory. She is the author of her own life. Beyond these platitudes, there’s a great deal of disagreement over exactly how self-governance should be understood (and even the platitudes are somewhat contested). This disagreement carries over into the philosophical literature on children’s autonomy, where a number of different views exist about what it is for a child to be self-governing and what the implications of this are for how we should treat children.8 For my part, I will assume that autonomy requires the following capacities to be present in an agent. First, the autonomous agent must be capable of reflective deliberation. She must be capable of stepping back from her impulses to act, and asking herself what she should do. Second, the autonomous agent must be capable of evaluating her attitudes in light of their conformity to norms of rationality. In other words, she must be able, in stepping back, to ask if the attitudes she holds – attitudes that including her beliefs, intentions, hopes, and so forth – make sense, taken as a package. For example, she may recognize that two of her intentions are inconsistent with one another, thereby realizing that one or both must be revised; or that she has failed to update her beliefs in light of newly gathered evidence, and that such an update is now in order.

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Finally, there must be facts about where self-governors stand, as agents. They must have a (more or less) settled and coherent set of attitudes. These attitudes define the agent’s practical identity and point of view. So when she decides on the basis of these attitudes, she acts on the basis of who she is, rather than what she is inclined toward at a particular moment or what others think she ought to do. Having a relatively stable sense of self means that, over time and across choices, there’s a meaningful sense in which one agent rationally acts, and thereby governs her own life. To recapitulate, an autonomous agent must be a reflective rational deliberator, with a settled coherent practical identity, or sense of self. But to what extent must she have these capacities? How rational must she be? How settled or coherent must her self-defining commitments be? I’ll have a bit more to say on these questions below, but for now, it suffices to say that autonomous agents can fall considerably short of the maximal conceivable ranges in these areas. They can be somewhat rational, for instance, despite failing in some instances to appropriately apply norms of rationality to their attitudes, or failing to revise these attitudes in light of the dictates of the norms. What matters is that these capacities are sufficiently present, and that they are exercised to some threshold level, such that the agent can step back from her inclinations and act for principled reasons that she gives herself.9 In addition to failing to establish what amounts to sufficient realization of the capacity or its exercise, I also avoid discussing a number of further matters, which some philosophers believe are necessarily tied to autonomy. For instance, I say nothing about historical preconditions necessary for self-governance (that is, preconditions concerning how we must come to endorse the principles we do and what influences others can play in shaping our convictions), the role of affect in self-governance, or the number and variety of external options required for self-governance. I don’t mean to suggest that these issues aren’t relevant; for the purposes of this chapter I simply remain agnostic about whether they are bound up with autonomy. Nor do I think that including plausible variants on these positions of them would affect the argument below.

Are Children Autonomous?

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Since my question here is about children’s autonomy, it’s worth stressing that age is incidental to whether an agent is autonomous. The capacity for autonomy, and the question of whether this capacity is exercised in a particular decision-making context, don’t make any essential reference to an agent’s age. Age only enters the picture to the extent that it is useful for indicating at what approximate stage in people’s lives they acquire the capacity for self-governance, together with its associated entitlements. Four Errors to Avoid When Assessing Children’s Autonomy I now turn to common errors that are made in assessing whether or not children are autonomous agents. These mistakes pervade commonsense thinking but are also common in the philosophical literature. Each of these mistakes serves to maintain the crisp distinction between autonomous adults and heteronomous children, characteristic of the popular basic view and its variants. But each mistake will be shown to lead to unacceptable consequences. As I’ll argue in the final section, the result of avoiding all of these errors is a picture of autonomy that includes many children in the set of autonomous agents, and requires rethinking what we owe to children in terms of respect for their current autonomy and resources for their agential development. Setting the Bar Too High Not all agents are self-governing. A hungry shark acts when swimming toward the scent of blood, and even does so for a reason (she’s after food). But, as far as we know, the shark’s choices are not informed by a self-conception or vision of what she wants her life to be like. In short, we can distinguish, even if imperfectly, between creatures capable of self-governance and those who are not. Without offering a fully worked out conception of autonomy, I’ve indicated above that I think any plausible account will require agents to step back from their impulses, possess some degree of rationality, and have a sense of self. Therefore, distinguishing between agents who are autonomous

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and those who are not involves establishing whether they possess these capacities to the requisite degree. Most of us believe that typical adults have the capacity for autonomy and, as a result, the moral authority to control various aspects of their lives.10 Conversely, there is a widespread belief that most children lack this capacity and its corresponding moral entitlements. Infants, for instance, clearly are not self-governors. They lack a capacity for making rational choices, they are generally unreflective about themselves, they lack a sense of practical identity, and so forth. So a plausible conception of autonomy must be able to draw a convincing line between developmentally typical adults, on the one hand, and infants or sharks, on the other. Determining how and where to draw this line has both a normative and an empirical component. First, we must make a normative determination regarding the degree of rationality and self-consciousness autonomy requires. Second, we have to go about establishing via empirical investigation which agents actually meet or exceed these requirements (and any other requirements that our full account of autonomy will include). The first mistake highlighted here corresponds to the normative part of this process, while the second (discussed in the following section) concerns the empirical component. The basic view suggests that even older children ought to be grouped with infants and sharks in that they lack the requisite capacities for autonomy. Weaker variants of the view endorse qualified versions of this claim, perhaps admitting older children into the class of self-governors. But all accounts that seek to draw a bright line between most adults and most children face a problem: in order to exclude all children, they have to set the bar for what autonomy requires too high.11 This is because the autonomous capacities of children (and all humans) are quite variable. This variation is mostly clearly exhibited between age groups, with the typical thirteen-year-old exhibiting greater capacities than the average four-year-old. However, the autonomous capacities of people within the same age group also vary significantly, as do our individual capacities from moment to moment. Consequently, seeking to exclude all children will require setting the requisite level of rationality and sense of self at a very high level.

Are Children Autonomous? 33

For example, Tamar Schapiro, who holds that children, taken as a class, are heteronomous, argues that autonomous agents must have a character, which requires a “determinate ordering” of one’s impulses and a “unified, regulative perspective which counts as the expression of her will.”12 While it’s true that, to be autonomous, one must be able to step back from her impulses to critically evaluate and order them, this does not necessitate having an entirely unified or determinate ordering. Setting the bar for autonomy this high will exclude children of all ages, but it will also exclude many adults from the class of self-governors. Most adults do not have a fully fixed and stable sense of self. Our selfconceptions often shift as we age, have children, change careers, move, face significant illness, form relationships with new people, and so on. Similarly, setting the required level of rationality high enough to exclude all children will also have the effect of making the bar impassable for many adults, who commonly act irrationally and are susceptible to various cognitive and emotion biases. In short, we must be careful in drawing the normative line that separates the autonomous from the heteronomous. In order to sustain some version of the basic view, and keep most children out of the domain of self-governors, we must exclude a considerable number of typical adults from that domain as well. This result is so divergent from widespread intuitions regarding adult autonomy that it discredits the basic view. Defenders of the basic view may object that their accounts are idealized and not meant to be applied literally, but instead establish a normative benchmark to aspire to. Schapiro, for instance, is clear that “strictly speaking, every instance of human willing is necessarily an imperfect realization of transcendental freedom, and every virtuous character necessarily falls short of perfect virtue.”13 However, we need some normative account of autonomy that we can utilize to guide our practical lives. She does not provide such guidance, nor do many other defenders of the basic view. Whether or not creatures are deemed autonomous has implications for their moral standing, and is relevant to the justifiability of our social, legal, political, and economic institutions. If the concept of autonomy is to bear this weight, we need a set of non-ideal criteria to separate the autonomous from the heteronomous, and move from

34 Sarah Hannan

abstract idealization to deal with realistic and pressing threshold cases. After all, many of the most contentions philosophical and practical disputes surrounding autonomy are about “borderline” cases where we need to establish how to treat children, cognitively impaired adults, and non-human animals. Settling these questions justly requires avoiding setting the normative bar for autonomy too high, and gathering sound empirical evidence regarding when various creatures pass the appropriately set bar. I now turn to this latter matter. Assuming Empirical Limitations That Must Be Proven Recall that the basic view holds that “adults should be allowed to make self-regarding decisions, children never.”14 A second mistake commonly made by advocates of this view is to merely state, rather than empirically establish, that children are incapable of what self-governance requires. To be clear, this chapter can’t prove definitively that young people under eighteen are capable of autonomy. First, I don’t establish with necessary specificity what self-governance requires. Second, even if this normative matter were settled, I don’t have the space to offer enough empirical evidence to show that children meet the relevant requirements. Finally, unlimited space wouldn’t suffice because more primary research must be conducted before anyone can safely say what autonomy capacities average children possess at different ages. Therefore, the mistake made by defenders of the basic view is not that of discussing children’s autonomy in the absence of conclusive empirical evidence; this cannot be avoided. Instead, the error is assuming or confidently stipulating, without sufficient evidence, that children are not self-governors. For example, Schapiro makes bold statements like the “only way a child can ‘have’ a self is by trying one on” during play, which is said to make children’s actions provisional and experimental in a way that adult actions are not.15 But no evidence is marshalled to defend this claim, which does not fit with my (admittedly anecdotal) assessment of many even very young children as quite in touch with a genuine sense of who they are and what they want. We should always be wary of ill-supported claims, but even more so when a lot hangs on those claims. In this case, stipulating that children

Are Children Autonomous? 35

are heteronomous means significantly limiting their entitlements to make crucial decisions about their lives. Children have a lot to lose in being declared incapable of self-governance, so we should be relatively confident that our assessments are correct. Additionally, we have special reason to be cautious because we’ve been disastrously wrong regarding analogous assessments in the past. For instance women, people of colour, and people with disabilities – to name just some groups impacted – have all been denied rights to control their lives on the basis of dubious empirical claims that were widely accepted. To be sure, we must guard against placing children in charge of aspects of their lives that they are not capable of governing and that would significantly risk their well-being. But given what’s at stake, and our problematic history of making such determinations, I would suggest that the burden of proof falls on those who would deny children opportunity to control any aspects of their lives. This burden is often not met. While the jury is out on just what children are capable of, anecdotal evidence suggest that some children can self-govern, in at least some contexts. For example, we know that even young children can be quite insistent about what they want to wear, how they want to spend their time, who they want to spend that time with, and so forth. That children express preferences for how various aspects of their lives go isn’t enough to demonstrate that they are autonomous. Being autonomous requires not merely that we make decisions, but rather that we make decisions in a particular way. Still, as mentioned above, there is wide variation in children’s capacities within the lengthy time between birth and age eighteen, between individuals of the same age, and within a given child’s capacities from moment to moment. Why assume that, with all of this variation, no one under eighteen is crossing threshold for autonomy at any point? That all (or most) children are incapable of autonomy seems even less plausible when we recognize the variability in adult capacities as well. Remember that the basic view, and even its less strict variants, are committed to the claim that typical adults are entitled to make many decisions about their lives and children are not. But when we carefully examine the way in which many adults make decisions, I think it will be hard to maintain this bright line. Elsewhere I argue that children

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have impaired reasoning, and often lack an established practical identity, both of which make them less autonomous than adults.16 However, accepting that children are less autonomous than adults, does not mean that children are fully heteronomous and lacking all autonomy entitlements. The obstacles that children face to autonomous choosing often thwart adult self-governance as well. For example, when adults lack information, are tired, or are struggling with emotional regulation we often make heteronomous decisions. However, adults are often given the benefit of the doubt and retain autonomy entitlements despite what appears to be heteronomous decision making. Why don’t we extend similar leniency to children? In short, I believe that there is a common set of impediments to autonomy that afflict both adults and children. Although some very young children are strictly incapable of attaining sufficient distance from their impulses, practical reasoning, and have a very limited since of self, the main difference between adults and older children is that children face these common impediments more frequently than their adult counterparts. So where Schapiro and others want to draw a distinction of kind between adults and children, suggesting that adults are self-governing and children are not, I maintain that there is only a difference of degree.17 We share the status of creatures that struggle to self-govern, rather than continually succeed at it. If my view is accurate, children are likely more agential sophisticated than our folk understanding, and most prevalent philosophical views suggest, while many adults may be less so. We must avoid false beliefs about the self-governing capacities of both adults and children, and resist overstating the differences between the two groups. Doing so will require getting normatively clear about the specific capacities that autonomy requires, and then doing more empirical research to discover at what ages children are typically capable of meeting these requirements. In the meantime, we ought to be suspicious of ill-supported assertions that seek to classify all children as heteronomous and all adults as autonomous. While I haven’t provided evidence that children are capable of what self-governance demands, I hope I’ve cast some doubt on the basic view that no children ever are. This case is made stronger in combination with the arguments below.

Are Children Autonomous? 37

Conflating Capacity and Exercise If we accept that a moral status distinction ought to be drawn between those who are capable of self-governance and those who are not, but that no one – of any age – will be capable of being autonomous all the time, this leaves us with normative questions about how to treat people who are capable of autonomy when they make heteronomous choices or hold heteronomous beliefs. We can make better conceptual sense of this predicament, and how to act in normatively appropriate ways, if we separate the general capacity for autonomy from specific exercises of this capacity. The third mistake is that of failing to distinguish these separate facets of autonomy, and consequently failing to afford children what they are owed. Separating questions about one’s status as an agent capable of autonomy from any of her particular choices allows for the possibility of identifying someone as autonomous without identifying all of her choices as similarly autonomous. This is relevant to our thinking about children’s autonomy because people attracted to the basic view may worry that recognizing children as autonomous will necessitate treating them like adults, which they may in turn fear entails respecting all of children’s choices. This does not follow. We are not obliged to respect all adult choices. In addition to the familiar other-regarding restrictions, which sometimes permit us to interfere in order to prevent harm to third parties, adults capable of autonomy sometimes make heteronomous choices or hold heteronomous beliefs that do not necessarily command our deference. For example, for adult consent to be binding in various legal and medical contexts, it must be informed. When people are inebriated, we often think it acceptable to override their decisions. Sometimes we press charges and treat victims as hostile witnesses in cases, such as domestic violence, where they don’t want charges laid. In all of these cases, adults are thought to face impediments to exercising the autonomous judgement they are generally deemed capable of. With respect to self-governance, I think the main difference between adults and (especially older) children, is that children more frequently face impediments that get in the way of successful exercise of

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their autonomy. Consequently, many children will require treatment that differs from that owed to the majority of adults, even where they are all identified as sharing the status of creatures with autonomous wills. So we can reject the basic view and classify many children as selfgovernors – provided that they have the requisite levels of rationality, stable enough sense of self, and so forth – without giving up on the idea that interference is appropriate when children capable of rational self-governance nonetheless choose heteronomously. With children, we often infer a lack of capacity for self-governance from their failures to exercise autonomous choice. Whereas with adults, we typically attribute what goes wrong to a failure to execute selfgovernance in a particular case, rather than to the absence of the capacity for autonomy more generally. These differences in our responses make the basic view look more plausible, but I don’t think this asymmetric response is justified. The asymmetry can seem especially problematic given that the principal obstacles standing between children’s capacity for selfgovernance and their success in exercising that capacity are some of the same obstacles that frustrate autonomous choice and action in adults. Children’s choices are often heteronomous due to the interference of strong emotions that undercut their self-control or due to their lack of information about how the world works. Since we regard these obstacles as sources of heteronomous choice in adults, rather than as undermining the capacity for autonomy itself, perhaps we ought to take the same position with respect to children as well. What implications might follow from separating the capacity for autonomy from the exercise of autonomy, and collapsing the asymmetrical response to adults and children? Perhaps many children, like adults, are capable of autonomy under ideal circumstances.18 But when the exercise of autonomy is sufficiently impaired, we don’t owe the resulting choices the deference that we do choices the agent makes autonomously. So if children characteristically (and to a much greater extent than most adults) choose heteronomously, despite their capacity for autonomy, the consequences of the foregoing distinction may seem moot. If we must regularly intervene in children’s lives to stop them

Are Children Autonomous? 39

from trying to “fly” off of roofs, or drop math classes because they’ve discovered calculators can do the hard work for them, what good does it do to insist that they might nevertheless retain the status of creatures who have a capacity for autonomy? Given that their choices are heteronomous, we might think children are not entitled to any special moral regard in virtue of their autonomy. But this misrepresents what we owe people with the capacity for autonomy in cases where they fail to choose autonomously. While their choices may sometimes be interfered with, in circumstances that would not be appropriate were the choices arrived at autonomously, we still owe them some special treatment in virtue of their autonomous capacity. For example, before interfering, we owe them the benefit of the doubt, at least to some degree, as to whether the choice really was autonomously arrived at. Such agents have a right to explain why they think interference is inappropriate, and would-be thwarters are required to genuinely consider the possibility that they are wrong.19 Where interference is deemed warranted, we owe those with a capacity for autonomy an explanation of why. Finally, just because interference is warranted in one case, this does not automatically justify widespread control. Those with the capacity for autonomy can retain the right to decide important matters in certain domains of their life, even while being denied that opportunity in others. So if we avoid conflating the capacity for autonomy with its exercise and find through empirical investigation that some children possess said capacity, they will have special moral standing and entitlements in virtue of this capacity – even when they fail to exercise it successfully. Summing up, we might say that disambiguating capacity and execution shows two kinds of deference that autonomy demands. The basic view’s plausibility is strengthened by conflating these two, inasmuch as children who possess the capacity may still frequently fail to successfully exercise it, especially earlier in their development of the capacity. But the basic view can’t be supported by appeal to failed exercise alone; instead it would need to defend the stronger claim that the capacity for autonomy isn’t present in all or most children. But we’ve already seen that this view likely overstates the psychological differences and

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capacity gap between adults and children. Moreover, disambiguating between the capacity and its successful exercise makes clear that we owe some children, in some cases or domains, respect for their capacity (characterized by the justificatory duties outlined in the previous paragraph) even when they’re making heteronomous choices. Misunderstanding Contingent Limits as Inevitable As I allowed in the previous section, children (taken in the aggregate) fail to rationally self-govern more often than adults do. And this asymmetry of failure rates is more pronounced the younger children are. This fact may seem to support the basic view. If children are creatures that are sufficiently likely to fail to exercise self-governance in particular instances, and adults are sufficiently likely to achieve it, then perhaps it makes sense to regard adults as self-governors, possessed of the attendant rights that autonomous agents have claim to, while regarding children as heteronomous agents appropriately denied such rights. This could be argued to be appropriate even if, under some rarified and unlikely circumstances, children could exercise autonomous choice. In the previous section, I argued that the presence of the capacity entitles potential self-governors to certain rights, such as the right to have interference justified to them. We don’t owe such explanations to sharks because (as far as we know) they lack the capacity for autonomy entirely. But if the circumstances where children are able to successfully choose autonomously are sufficiently rarefied, then one might doubt whether it is appropriate to regard them as having the capacity at all. Are young children more like sharks than they are like adult humans? I’ve already suggested that this sort of objection overstates the differences between children – especially adolescents and children close to adolescence – and adults. But now I want to raise a different concern with this way of supporting the basic view. If children’s self-governance would be enhanced under other social conditions, then this may be relevant to assessing what they are owed. To be sure, some of the largest and most common obstacles to self-governance that children face are necessary features of childhood. These follow from facts about

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what it is to be a child that aren’t responsive to environmental change. For instance, children are newer to the world than older people are. And this newness will inevitably lead to informational deficits that can block their attempts to rationally form and pursue projects in the world. Similarly, children are constitutionally worse at emotional regulation than typical adults are. And this can also frustrate their rational self-governance. But other obstacles seem contingent and potentially responsive to intervention. And even when some degree of impairment is inevitable, as in the cases just discussed, the way children are raised is likely to affect the extent of their impairment by obstacles that are inherent to childhood. For instance, while some informational deficits are an inevitable feature of childhood, due to children’s newness in the world, children also lack relevant information about the world in which they live because it is intentionally withheld from them. Adults frequently shield children from certain types of information on the assumption that they cannot process it, or that it will do them harm of some sort. For instance, it is common for adults to attempt to shield children from the realities of death, facts about human sexuality, violence, and suffering. Similarly, some degree of inexperience in the act of choosing and shouldering the consequences of one’s choices is inevitable. However, children may be granted more or fewer chances to practice making choices of their own (including mistakes) and experiencing the results of these choices (even when these results are costly). Exposure to this kind of responsibility may hasten many children’s willingness to take self-governance seriously, and enhance their abilities at rational self-management. Other interventions are also possible. For instance, adults can encourage children to be more mindful of their mental states and foster techniques for emotional regulation. The position of those who deny the implications of children’s selfgovernance is rendered more plausible by taking children as they are. But, since some of the obstacles to children’s development of the capacity for self-governance, as well as their successful exercise of this capacity, are under our control, we have responsibilities to help children overcome these obstacles. Doing so could plausibly lower the

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typical age at which children become autonomous. And it would also affect how many of children’s choices count as successful exercises of self-governance.20 In short, it’s wrong to intentionally hinder children’s self-governance and then point to the resulting deficits to justify our initial interference. We should not make the mistake of confusing the limits that we have placed on them for what they are inherently capable of. Positive Implications of Avoiding the Four Errors Thus far, I’ve sketched four misguided ways of thinking about children’s autonomy and explained why I believe they are misguided. We should not set the bar for autonomy too high, endorse potentially false empirical claims about the differences between children’s and adults’ capacities, conflate the capacity for autonomy with its successful exercise, or misunderstand contingent limits to children’s capacity or exercise of autonomy as inevitable. All of these errors lend support to the basic view. When we avoid these mistakes, however, the basic view looks rather implausible. So we shouldn’t accept the basic view (or similar views), which deny that children, as a class, have the capacity for autonomy or most of the moral entitlements that come with it. Is there anything we can learn about what we should accept from the discussion of the errors above? I conclude by briefly sketching two positive upshots, which have come up in the discussion above, but which are worth attending to in their own right. First, if I’m correct that many children have the capacity for autonomy, and if some of their choices are successful exercises of this capacity, then our current practices, which give adults a great deal of control over children’s lives, violate these children’s moral entitlements. For example, parents’ interference in children’s choices about what activities to spend their time on, who to spend their time with, and how to express themselves are liable to violate these children’s entitlements, once they’ve developed their autonomy. Most of us regard undue interference in the lives of adults as a serious moral wrong. My suggestion is that we should regard many common interferences in the

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lives of children as similarly immoral. Moreover, even in cases where children’s heteronomous choices are rightly overridden or interfered with, many children, who currently possess the capacity for autonomy, are owed more by way of explanation than our current practices suggest. “Because I said so” is often no more acceptable a justification for controlling children than it is for adults. Some philosophers of childhood have suggested, rightly on my view, that the capacity for autonomy can be domain specific.21 Agents may be capable of exercising self-governing authority over some aspects of their life, but not others. And in the case of children, this capacity can expand from a highly limited domain – what to wear, for example – to a broader, and perhaps more, significant range of choices, such as who to live with, who to vote for, and which medical procedure to undergo. If this thought is correct, then the case for granting children more authority, at even earlier ages, becomes stronger because we can grant them control over certain domains at a time, by recognizing the capacities that they already have within certain spheres of their life. There is also an additional developmental rationale for reducing adult interference with children’s choices about how their lives should go. Treating children as if they are autonomous (in circumscribed ways),22 when they have not yet developed the requisite capacities, is a way of fostering their autonomy.23 Therefore, there is significant reason to treat them this way, at least when doing so does not lead to significantly bad consequences. This brings me to the second point: the fact that children’s development of their capacity for autonomy is variable, depending on the context in which they grow up, means that we may have under-appreciated responsibilities to foster this development. “Childhood” is a state that has changed significantly over time, and remains distinct in different cultures today. For example, children are permitted to play unaccompanied, work outside the home, and take on familial responsibilities in very different degrees and at quite divergent ages. It’s true that some of these children were permitted, or required, to take on duties for which they were not equipped. However, it still seems fair to conclude that the environment children are in can change, at least around the margins, the rate and extent to which they develop their capacity

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for autonomy, and ability to make autonomous choices. This belief is further supported by the widespread acceptance that we have a duty to assist children in becoming self-governors, as it’s not an inevitable progression and can go awry. But parents, and society more broadly, owe children the resources they need in order to experience reasonably good childhoods. This involves more than just giving them what they need to eventually become self-governing adults. It also requires providing for a childhood that is good in its own right. This is why parents fail to fully live up to their responsibilities when they successfully train children for adulthood but don’t also cultivate opportunities for enjoyable experiences and valuable relationships in childhood. There is a potential tension then, between giving children an autonomy-conferring upbringing, and giving them an upbringing that conduces to their well-being. My own view is that childhood is significantly worse for children, holding other things equal, when it involves diminished self-governance (just as many people would agree about the analogous claim concerning adult lives). But some philosophers claim that it is good to have a period of childhood where one lacks the capacity for autonomy, with its associated responsibilities, or where one isn’t exposed to the information required for successful self-governance, which they believe can compromise children’s innocence.24 This supports the popular refrain that we must “let children be children,” and the fear that children might “grow up too fast.” I’ve argued elsewhere that these claims require positing an implausible discontinuity between the constituents of children’s wellbeing and the constituents of adults’ well-being.25 And the results are especially difficult to accept as children grow older, in their early and late teen years. While I agree that we ought to “let children be children,” to some extent, we must not forget that being a child often means having almost no control over some very important aspects of your life. In light of this, it’s not unreasonable to suggest that childhood is a state we may want to emancipate children from sooner, rather than later. I’ve suggested that the basic view, and all variants, which draws bright lines between the autonomous capacities of adults and children cannot be sustained without making some serious normative and empirical

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errors. Avoiding these mistakes reveals that many people commonly referred to as children (those under the age of eighteen) are having their autonomy rights infringed. Many children currently having the capacity for autonomy, some are capable of autonomous choice (in at least some domains), and most children having the potential to develop the capacity for autonomy. Despite this, we often treat them very differently from adults with similar abilities. The second upshot of thinking carefully about children’s autonomy was that if we begin respecting children’s entitlements in virtue of their potential for autonomy, then it’s likely that even more children, at even young ages, will attain the capacity for autonomy, and the ability to exercise this capacity. More needs to be said to defend these claims, but I hope this chapter has provided reason to question prevalent views about children’s autonomy and made the basic view seem implausible. I’ve begun to motivate an alternative account, but mainly highlighted the need for future normative and empirical work on (1) the self-governance capacities of children, (2) whether heteronomy is, in fact, bad for children, (3) how to weigh the value of children’s autonomy against children’s wellbeing, (4) how quickly (if at all) we ought to hasten children’s development of autonomous capacities, and (5) what methods are best for cultivating self-governance in children.

Notes Over ten years ago, when I was Richard’s ma student, we co-wrote “Parental Rights.” That paper discussed children’s future autonomy, so there’s a sense in which this piece continues that project. But everything I write and do in my capacity as a professor – whether directly engaging with Richard’s work or not – is inspired by his impressive career and indebted to the positive personal impact he’s made on my life. Richard, thank you for your endless encouragement, support, and exemplary modelling of how to do this job. Some of the core ideas in this chapter have been kicking around since my dissertation. For especially helpful conversations or written comments on earlier versions of these arguments I thank: Matthew Clayton, Corey MacIver, David Miller, and Adam Swift. I’d also like to thank audiences at Oxford, Stanford, and Kansas State for helpful engagement with related talks. This

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chapter was finished during a trying pregnancy, and R.J. Leland was instrumental in helping sharpen my ideas and convert them into a written document. I am extremely grateful for his help (despite the fact that he’s partially responsible for my physical state). Hannan, “Why Childhood Is Bad for Children,” 11–28. Tomlin, “Saplings or Caterpillars?,” 29–46. Schapiro, “What Is a Child?,” 715–38; Brighouse, “What Rights (If Any) Do Children Have?,” 31–52. Archard “Children, Adults, Autonomy and Well-Being,” 3. If you’re not a fan of moral rights talk, I think you can substitute “moral entitlements” without any loss of coherence. This chapter, and this section in particular, draws on and expands points I make in Hannan, “Childhood and Autonomy,” 112–22. This age range corresponds most closely with restrictions imposed in Western societies (though there is still some variation within these countries). In nonWestern countries age-based restrictions are also a common feature of most legal systems. These restrictions frequently exclude people within the specified range from enjoying certain rights or partaking in certain activities. Therefore, despite the variation in the ages of exclusion and inclusion found around the world, the period between birth and eighteen-years-old seems roughly suitable. For a more extensive discussion of the literature see my “Childhood and Autonomy.” Sometimes I speak of the “capacities” necessary for autonomy and at other points I refer to the “capacity for autonomy” for short. Where I use the singular, it’s meant to encompass whatever capacities are deemed necessary by myself or the reader. For criticism of this view, Conly, Against Autonomy. Archard highlights more general concerns with drawing lines between those who are autonomous and those who are not: (1) how to draw a non-arbitrary line at which possession of some trait can serve to ground a moral status distinction between autonomous and heteronomous individuals, (2) where to draw this particular line, and (3) how to address the fact that those who are on the autonomous side of the divide exhibit the relevant traits to variable degrees, yet we don’t ordinarily grant greater or lesser moral status to adults in accordance with this variation (see “Children, Adults, Autonomy and Well-Being,” 7–11). Here I raise a different issue: that when such thresholds are drawn, they are often drawn unreasonably high, and risk excluding everyone from the class of self-governors.

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12 I take Schapiro’s understanding of “character” to be consistent with what I call a “sense of self ” here. See “What is a Child?,” 730. 13 Ibid., 723. 14 Archard, “Children, Adults, Autonomy, and Well-Being,” 7. 15 Schapiro, “What is a Child?,” 732–3. 16 Hannan, “Why Childhood Is Bad for Children”; Hannan and Leland, “Childhood Bads,” 366–84. 17 Schapiro “What is a Child?,” 725. 18 Ideal circumstances are those that would allow children to exercise their capacity for autonomy right now. There is a sense in which infants will “ideally” grow into creatures capable of autonomy, but they don’t currently possess the capacity for autonomy in the relevant sense. In other words, capacity for autonomy is not the same as potential for autonomy. Many philosophers regard children’s potential for autonomy as grounding special rights, for the seminal articulation of this view, see Feinberg “The Child’s Right to an Open Future,” 124–53. What I’m saying here goes beyond this claim. I’m arguing that many children have moral entitlements that flow from their current capacity for autonomy and not merely in virtue of their potential do develop this capacity in the future. 19 For a similar view see Bou-Habib and Olsaretti, “Autonomy and Children’s Well-Being,” 15–34. 20 The claim that we do not know what children are capable of because of the ways they are currently treated, mirrors one J.S. Mill made about women. He argued that women have “hitherto been kept, as far as regards spontaneous development, in so unnatural a state, that their nature cannot but have been greatly distorted and disguised” (quoted by Archard, Children: Rights and Childhood, 40). 21 Mullin, “Children, Paternalism and the Development of Autonomy,” 413–26; Brennan “Children’s Choices or Children’s Interests,” 53–69. Tamar Schapiro also seems open to this (see “What is a Child?,” 733), but she must say more about how allowing that children exhibit autonomy in some domains squares with the distinction of kind she draws between the autonomous status of adults, and even older children. 22 Lafollette, “Circumscribed Autonomy,” 137–52. 23 See Brighouse, “What Rights (If Any) Do Children Have?” 24 Brighouse and Swift, Family Values, 65; MacLeod, “Agency, Authority, and the Vulnerability of Children,” 53–64. 25 Hannan, “Why Childhood Is Bad for Children.”

Chapter Two Children’s Interests, Liberal Multiculturalism, and the Right to One’s Own Culture Andrew M. Robinson In 2002 David Archard observed that, “debate over multiculturalism has principally if not exclusively been conducted as a debate over what adult citizens can make claims to and from the state … In all of this discussion the rights or interests of children have not been extensively considered.”1 Not much has changed since. Where the topic has been raised, attention has been limited to the effects of culture loss on parental aspirations and family bonds2 or efforts to preserve cultural communities have been portrayed as representing a conflict between parental and children’s interests.3 This chapter challenges assumptions that cultural rights designed to protect cultural minorities are primarily a matter of parents’ interests and that parental interests in minority cultural rights will usually conflict with children’s interests. It does so by reflecting on children’s autonomy-based interests as reflected in the liberal literature on parental authority and, to a lesser degree, psychological literature on acculturation and immigrant youth. The parental authority literature is shown to embody two competing conceptions of personal autonomy, only one of which suggests inherent conflict between parents and children’s interests. The chapter argues in favour of the other conception, situated autonomy. This has important effects. It helps explain why cultural minority children may share their parents’ interest in cultural rights and it informs answers to three questions that have raised problems for liberal multiculturalism as reflected in the argument developed by Will Kymlicka in Multicultural Citizenship: Why should people enjoy cultural rights to their own cultures; can the cultural

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rights of national and immigrant/ethnic minorities share a single justification; and can the same justification account for the extension of different cultural rights to each type of minority? The chapter begins by using Will Kymlicka’s argument in Multicultural Citizenship to illustrate what is meant by liberal multiculturalism and the three questions that have been associated with it.4 The second section considers the role of children within liberal multiculturalism and reflects on the parental authority literature to consider children’s interests. This discussion introduces the two conceptions of personal autonomy and explains why one, autonomy-as-choice, suggests that parents’ and children’s interests with respect to cultural rights are likely to conflict. The third section discusses situated autonomy and explains how it can support an argument for a right to one’s own culture. The final two sections flesh out the argument by considering potential challenges to this argument. By considering and rejecting the possibility that children’s autonomy interests might be advanced by transferring them to parents in other cultures, the fourth section argues that a prima facie right of parents to raise their own children is in children’s interests. The final section considers integrationist policies, including one proposed by Daniel Weinstock, designed to advance minority children’s autonomy interests by preparing them to join new cultural communities as they grow up. While this proposal is not entirely rejected, principles are suggested for its application that, it is argued, can explain how children’s interests can justify differentiated cultural rights for national and immigrant/ethnic cultural communities. Liberal Multiculturalism This section refers to Will Kymlicka’s account of liberal multiculturalism as found in Multicultural Citizenship to illustrate key aspects of the theory as well as the three problematic questions that were associated with it in the introduction. Liberal multiculturalism, as conceived here, suggests that justice may require the state to extend cultural rights to national and immigrant/ethnic minorities (referred to collectively as cultural minorities).

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Typical of such accounts, Kymlicka argues for different cultural rights for each type of minority. While national minorities may warrant stronger cultural rights like that to self-government rights,5 immigrant/ ethnic minorities deserve only weaker cultural rights (i.e., “polyethnic rights”) such as public funding of “ethnic associations, magazines, and festivals” and “exemptions from laws and regulations that disadvantage them, given their religious practices” which enable “ethnic groups and religious minorities express their cultural particularity and pride without it hampering their success in the economic and political institutions of the dominant society.”6 The justification for such cultural rights and the differences between them lies in the centrality of the individual and her freedom, conceptualized as personal autonomy. One of Kymlicka’s signature contributions to this literature is the claim that personal autonomy has cultural preconditions that had previously been ignored or presupposed. Thus, in addition to the freedoms to live in accordance with one’s beliefs and to reflect upon and revise them,7 Kymlicka suggests that personal autonomy requires access to societal cultures, which, he writes, “tend to be territorially concentrated, and based on a shared language” and provide their “members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres.”8 Societal cultures support their members’ autonomy “because it is only through having access to them that people have access to a range of meaningful options.” 9 The three questions noted above concern the way Kymlicka uses the idea of societal culture to justify the different types of cultural rights. Kymlicka raised the first question himself while discussing national minorities: “why do the members of a national minority require access to their own [and not just a] culture?”10 While his answer is honest and reasonable, it also leaves open the possibility that it might be improved upon: “I suspect that the causes of this attachment lie deep in the human condition, tied up with the way humans as cultural creatures need to make sense of their world, and that a full explanation would involve aspects of psychology, sociology, linguistics, the philos-

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ophy of mind, and even neurology … whatever the explanation, this bond does seem to be a fact, and, like Rawls, I see no reason to regret it.”11 With respect to immigrant/ethnic minorities, who have typically left their societal culture behind in their homeland, Kymlicka accepts that they will ordinarily rely upon the mainstream societal culture to enable them to exercise personal autonomy.12 While, unlike national minorities, they cannot justify protection for their own societal culture, immigrant/ethnic minorities may warrant polyethnic rights that enable them to maintain “some of their heritage” while integrating into the mainstream societal culture.13 A problem with this argument, as critics have noted, is that if cultural rights are justified by the contribution of one’s own societal culture to one’s personal autonomy, then “it is not clear why immigrants are entitled to any special rights to maintain their distinctive cultural commitments.”14 This concern informs the other two questions: can the cultural rights of national and immigrant/ethnic minorities (1) share a single justification that (2) can account for rights that differ by type of minority? In sum, the questions that this chapter raises about liberal multiculturalism reflect the nature of the relationship that has been suggested between cultural community and personal autonomy. It should not be surprising, then, that an effort to identity satisfying answers to these questions should revisit the nature of the relationship between autonomy and culture. Children’s Autonomy Interests versus Parents’ Cultural Rights? This section considers children’s interests in liberal multiculturalism. It begins by discussing the role children play in liberal multiculturalism and then turns to the liberal parental authority literature to consider children’s interests. After demonstrating that this literature embodies competing understandings of personal autonomy, it demonstrates how one of these, autonomy-as-choice, informs the view that liberal multiculturalism is not in children’s interests. The section concludes by noting questions that must be addressed if this conclusion is to be resisted.

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Children play a vital, if often implicit, role in liberal multiculturalism since the long-term survival of any cultural community depends upon children growing up to become members of the community in the future. But, just noting this draws our attention an awkward fact: children are born into, not with, a culture. Thus, while it may be reasonable to speak of adults as having their own culture in the sense that they have formed identities that attach them to particular cultural communities, this is clearly not the case for babies and young children. It is only through processes of development and socialization that children may gradually come to identify as members of a culture and consider the culture substantively their own. Thus, while parents’ interests in the survival of their cultural community will normally be advanced where their babies and young children grow up to share their attachment to their cultural community, it is not clear whether their babies and young children share this interest. This vital link between children’s upbringing and the survival of cultural communities suggests the relevance of the parental authority literature. “Culture” and “cultural community” are largely abstractions. Babies and young children learn to identify with them and make them their own through their encounters with agents of socialization, one of the most important, especially in the early years, being the family. Since the family is a key site for the reproduction of cultural communities across generations, discussion of the legitimate scope of parental authority to shape children’s values and identities in general is directly relevant to consideration of children’s interests with respect to their parents’ rights to cultural survival in particular. Autonomy-as-Choice Having noted children’s role, we can turn to their interests. Given our focus on liberal multiculturalism, the relevant interest is in the exercise of personal autonomy. As I have argued elsewhere, the liberal literature on parental authority embodies two distinct conceptions of personal autonomy, which I have called autonomy-as-choice and situated autonomy.15 These conceptions present differing accounts of the relationship of children’s interests to their parents’ interests in cultural

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rights. The implications of autonomy-as-choice are considered here; those of situated autonomy are discussed in the next section. According to autonomy-as-choice, autonomy requires the maximization of the aspects of an individual’s life that are the result of explicit personal choice; these include her values and identities. This conception is reflected in the writing of several contributors to the parental authority literature as well as in Daniel Weinstock’s discussion of children’s interests in multiculturalism. In both cases reliance on the autonomyas-choice conception leads to suggestions that children have no independent interests in the preservation of their parents’ cultural communities and, as a result, state support for parents’ cultural rights constitutes an unjust privileging of parents’ over children’s interests. The autonomy-as-choice conception informs the thinking of several contributors to the parental authority literature. It appears most clearly when Matthew Clayton writes that “if others, such as her parents, are concerned that she is the author of her life, they will regard themselves as under an obligation not to choose for her, not try to get her to hold particular beliefs that they find attractive or compelling, or to make her engage in particular ethical practices, such as worship, which they regard as essential to a worthwhile life.”16 It is also implicit when Hannan and Vernon argue that since we “do not grant adults control rights to influence the values and commitments of other adults in the name of fostering intimacy,” we should not grant parents such rights over children17; when Morgan rejects “the alleged rights of cultural or religious groups to perpetuate themselves through direct initiation of children”18; and when Marples describes as “fallacious” the “assumption that because one is a Catholic or Moslem oneself, one’s children are thereby Catholics or Moslems.”19 The conflict between the interests of cultural minority parents and children may be implicit in these arguments, but its implications are clear. As Morgan suggests, if children’s interests are defined in terms of what I am calling autonomy-as-choice and are strongly protected, “it is hard to imagine how minority cultures could survive very long.”20 This conflict of interests and its implications are drawn out more clearly in Weinstock’s consideration of children’s interests with respect to “educational policies designed to protect endangered languages.”21

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Reflecting the autonomy-as-choice conception, he identifies children’s interests with Joel Feinberg’s idea of the child’s right to an open future and claims that it is in the interest of children in linguistic minority communities to develop competency in the dominant language because this will enable them to access the wider range of “opportunities and ways of life that mastery of the larger language makes possible.”22 Weinstock clearly understands that this account of minority children’s interests suggests intergenerational conflict: “there is a conflict between the parental interest in preserving a minority language and the child’s interest in a sufficiently open linguistic future, such that if parents and the communities to which they belong choose to perform the former, they do harm to their children.”23 Having characterized children as having no independent interest in the survival of their parents’ cultural community, he suggests that, “there is no credible argument claiming that our interests should take categorical precedence over those of future generations.”24 Again, the implications for the survival of cultural minorities are dire. As Weinstock notes, under conditions of “asymmetrical bilingualism” the incentives weigh against minority linguistic community survival where their children’s interest in learning the dominant language is respected.25 In sum, if children’s interests are defined in terms of the autonomyas-choice conception of autonomy, this will pose serious challenges to the justification of minority cultural rights. And, further, any response to these challenges must do two things: it must demonstrate that there is a compelling alternative to defining autonomy as autonomy-as-choice and it must demonstrate that children can have their own interests in the survival of their parents’ cultural communities. Fortunately, as will be argued in the next section, the situated autonomy conception appears capable of doing both. Children’s Interest in Their Parents’ Cultural Rights Situated autonomy provides a more compelling alternative to the autonomy-as-choice conception of personal autonomy, and can explain why parents’ cultural rights can be in their children’s interests.

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After explaining situated autonomy, this section reviews arguments I have made elsewhere that draw upon findings from psychological literature to suggest that situated autonomy provides a more compelling account of personal autonomy than autonomy-as-choice, primarily because it is in children’s interests to be raised in ways that are likely to result in their sharing many of their parents’ values and identities. The section then concludes by explaining how situated autonomy gives children a prospective interest in the same cultural rights to the survival of their cultural community as their parents. Situated Autonomy Unlike autonomy-as-choice, situated autonomy considers parental efforts to instill values not as a threat to children’s autonomy, but as one of its prerequisites. Whereas autonomy-as-choice envisions people choosing their values and identities for themselves, situated autonomy is consistent with people receiving their values and identities from others so long as they also develop a capacity to revise them later in life. This is reflected, for instance, in Robert Noggle’s claims that autonomy requires “evaluative criteria,” that people do not create such criteria out of “thin air,” and that values and identities that people receive from their parents usually fulfill this need by functioning as “an initial ‘default’ position.”26 It is also exemplified in Shelley Burtt’s suggestion that children who “accept” rather than “self-consciously select” the first “principles that govern their lives” can be autonomous so long as they develop the capacity to reflect upon and endorse or reject those principles later in life.27 An important feature of situated autonomy can be highlighted by distinguishing it from a very similar account that David Archard presents in his consideration of children’s rights within liberal multiculturalism. Consistent with situated autonomy, Archard claims that, “it is entirely consistent with liberal principles that an upbringing should transmit to children a set of values and a way of life so long as the child can, as an adult, reflect upon these values and elect to revise, abandon, or endorse them for herself.”28 Unlike situated autonomy,

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however, Archard presents such parental value transmission as a justifiable limitation on the child’s autonomy. This is apparent when he defends value transmission on the grounds that the child’s interest in an open future requires that the child “acquire only so much autonomy not as much as possible autonomy.”29 Unlike Archard, situated autonomy views such value transmission not as a valuable good that is distinct from and may place a limitation upon autonomy, but as a prerequisite of personal autonomy. From the perspective of situated autonomy, Archard’s defense reflects an incomplete account of the prerequisites of personal autonomy. According to situated autonomy, children’s interest in personal autonomy consists of both choice-based autonomy interests in accessing more rather than less options, which Archard recognizes, and value-based autonomy interests in developing values and identities that can inform choice, which Archard treats as a limitation. While in the ideal situation individuals can maximize both value-based and choice-based interests, it is also possible that one interest can only be maximized at the risk of denying the other. This is a problem with one-sided conceptions like autonomy-as-choice, which, by privileging choice-based autonomy interests, may advocate policies that would preclude sufficient satisfaction of value-based autonomy interests. This theoretical argument for the superiority of the situated autonomy conception is bolstered by evidence drawn from psychological literatures. This evidence suggests both that situated autonomy’s model of identity formation is consistent with actual processes of human development and that its prescriptions are likely to contribute to children’s psychological well-being. As these arguments have been made elsewhere, they are only described briefly here.30 One argument for the superiority of situated autonomy over autonomy-as-choice is that this model of identity formation is more consistent with psychological accounts of human development. On the one hand, like situated autonomy, literature on psychological development suggests that children develop adult identities by first receiving values and identities fairly unquestioningly from their parents and then reflecting on them and making them their own in youth.31 On the other hand, evidence from the psychological literature on im-

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migrant acculturation provides reasons to doubt assumptions that underlie autonomy-as-choice such as those that parents are capable both of indoctrinating their children so thoroughly that they are incapable of ever making independent choices and of controlling the influence of their own behaviour such that they can choose to refrain from influencing their children’s adoption of values and identities. Another argument suggests that a likely outcome where situated autonomy is valued – children growing up to share much of their parents’ values and identities – will contribute to children’s well-being. The claim that children’s well-being benefits where they share ethnic identities with their parents is supported by findings within the psychological literature on acculturation and immigrant youth. This literature is relevant because the situation of immigrant youth shares important similarities with that of all youth, and especially those born into cultural minority communities: within the home children are raised by parents whose values and identities do not align, to varying degrees, with those of the mainstream, dominant cultural community; and, as such, children face competing pressures to assimilate into the dominant cultural community or to retain (or, perhaps better, reproduce in their own lives) elements of their parents’ cultural identities. Examples of the findings that support this claim include the following: children who adopt values of their parents’ ethnic group tend to report higher levels of psychological adaptation (operationalized as life satisfaction, self-esteem, and absence of psychological problems) than those who do not32; the smaller the gap between parents’ and youth’s values (i.e., the “acculturation gap”), the better their reported psychological and sociocultural (operationalized as school adjustment and behaviour problems) adaptation and adolescents who identify more strongly with their ethnic culture are “least influenced by discrepancies”33; and youth who achieve “a state of clarity and understanding about the meaning of their ethnicity” report statistically significantly higher levels of psychological well-being than those who do not.34 For the purposes of the present argument this account of the superiority of situated autonomy will have to suffice. It is now time to consider how situated autonomy can suggest that babies and young children can have independent interests in their parents’ cultural rights.

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Why Children Have an Interest in Their Parents Enjoying Cultural Rights The argument that children can have an interest in their parents’ cultural rights proceeds something like this. Other things being equal, children will often be raised by parents who belong to minority cultural communities (whether these are their biological or adoptive parents). To secure their children’s capacity for situated autonomy by satisfying their values-based autonomy interests, as well as contribute to their children’s psychological well-being, parents should raise their children to develop secure values and identities that can inform their autonomous choices as they become adults. Since parents can only reasonably be expected to share their own values and identities with their children and, since the parents’ values and identities usually originate from and embed them in their own cultural communities, the overall effect is that the children are likely to develop values and identities that embed them in their parents’ cultural communities as they mature. Thus, if respect for children’s interests is likely to result in their becoming attached to their parents’ cultural communities when they become adults, it is in both parents’ and children’s present interests that the parents’ cultural communities survive into the future. Where the ongoing survival of these communities requires reasonable state support, these interests may justify cultural rights. If this is the case, then, contra Weinstock, rather than representing a conflict between parents’ interests in the survival of their cultural community and their children’s choice-based autonomy interests, the exercise of cultural rights by the parents to preserve the existence of the community represents a confluence of, not a conflict between, the parents’ and children’s interests. And this remains the case at least until such time as the children choose to reject the communal identification. If this argument is persuasive, then we have found an answer to the first question that was raised about liberal multiculturalism: one of the reasons that parents should have a right to their own culture is that it is in their children’s interest that the parents’ cultural community continue to exist. To recap, situated autonomy suggests that children

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have an interest in being raised to share their parents’ values and identities; it is assumed that children will be raised by parents in minority cultural communities and these parents can only be expected to raise them in ways that are likely to result in their becoming attached to their parents’ cultural communities when they become adults; thus, it is in the children’s, and not just their parents’, interests, that the parents’ cultural communities survive. This implication may be expressed as a rejoinder to Marples: while a baby or young child of Catholic or Muslim parents may not by virtue of that fact be Catholic or Muslim, the fact that her parents are Catholic or Muslim gives her a prospective and vital interest survival of the community that supports her parents’ Catholic or Muslim values and identities. It should be clear that the argument as just stated relies upon (at least) two contestable assumptions: that children will often be raised by parents who belong to minority cultural communities and that parents can only reasonably be expected to raise their children to share their own values and identities. By reflecting upon possible objections to each of these assumptions, the two sections that follow strengthen the case for children’s interests in their parents’ cultural rights and, ultimately, provide a basis for answering the two remaining questions about liberal multiculturalism. Children’s Interests and the Prima Facie Right to Parent This section considers a challenge to the assumption that children will normally be raised by their biological parents. The challenge can be phrased like this: even if it is in children’s interests to be raised to share their parents’ values and identities, why must those parents be the parents they happen to have and not some other, more optimal parents? In responding to this challenge an argument is made for a prima facie children’s interests-based right to parent one’s children. The parental authority literature provides a useful example of the form such a challenge might take. It is found in what Hannan and Vernon call the Plato Worry: “If children’s interests would be better served in being raised by people other than their biological or adoptive

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parents … then according to the child-centered view it would not only be permissible, but required, that they be taken from their current parents.”35 If children’s interests are defined from the perspective of autonomy-as-choice, this Plato Worry becomes especially threatening to cultural minorities. From the perspective of autonomy-as-choice, the “best parents possible” would seem to be those able to raise children to belong to cultural communities that will provide them with access to the widest range of options. (Something like this concern seems to lie behind Weinstock’s suggestion that, “by and large,” liberal multiculturalists “claim for parents and minority communities broad prerogatives that have the effect of limiting the cultural horizons of children.”)36 The implication, then, is that, at least in the case of babies and young children who have not yet formed identifications with their present parents’ cultural communities, it is in children’s interests to be transferred from parents in cultural communities that provide a limited range of options to ones that will provide access to wider ranges of options. This is clearly not favourable to cultural rights and the survival of minority cultural communities. Before responding to this challenge, it is worth noting why some responses that have been offered to the Plato Worry are not available given our reliance on situated autonomy. Colin Macleod’s claim that the Plato Worry is not that serious because, “beyond a certain (reasonably high) threshold of competence, comprehensive quality comparisons between different parents are, in the real world, epistemically indeterminate,”37 will not help the present argument because the basis of the Plato Worry as conceived here is the much more easily assessable comparative capacity of the cultural communities to provide access to ranges of options. Similarly, our focus on children’s interests prevents us from employing Brighouse and Swift’s argument that resisting the Worry requires accepting that parents’ interests will sometimes “trump” children’s interests.38 Unlike these arguments, I will suggest that the Plato Worry can be answered by focusing on children’s interests alone: children’s own interest in the right to parent and children’s interests in avoiding some outcomes that may result when the right to parent one’s children is denied.

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While it might seem odd, I believe a children’s interests-based response to the Plato Worry can begin with the idea of a right to (be a) parent. The parental authority literature presents numerous examples of interests that prospective parents have in raising children that are of sufficient significance to ground such a right. These include: the way that parenting can lend “shape and meaning to one’s life”39; the way the parenting relationship can enable adults to develop and exercise valuable capacities and experience self-discovery, personal growth, and unique pleasures and emotions40; and the fact that being a good parent may itself constitute an “instantiation of the good life.”41 Such a right to parent can, of course, only be a prima facie, not an absolute, right. Respect for the interests of children suggests that this right is forfeited if parents abuse or neglect their children or fail to demonstrate a basic level of competence.42 Brighouse and Swift capture this limitation nicely in the idea that parents must be “good enough.”43 This prima facie right to parent one’s children is in children’s interests because parent and child are not immutable identities in the way that, say, membership in racial groups tends to be. Other things being equal, today’s children are likely to become tomorrow’s parents. Thus, children’s interests in a right to parent is grounded in children’s interests as future adults. As future adults, it is not in children’s interest that the right to parent be defined in such a way that they may be denied it when they become adults, even if they exhibit a basic level of competency. Children’s interest that their present parents enjoy a prima facie right to parent also becomes apparent through consideration of some undesirable outcomes that may result when this right is denied. One possible outcome is that, in our imperfect world, transferring children from competent parents in one culture to parents in another culture may result in a decline in the children’s autonomy and well-being, even when the receiving culture provides access to a wider range of options. The concern, in our terms, is that even where children have adopted their parents’ new values and identities and identify as members of their parents’ cultural communities, they may still not enjoy access to the wider range of options that community provides. One classic concern is that other members of the parents’ cultural community

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may not accept the racial and/or cultural identities that the children have adopted from their parents.44 Examples of how this might occur are found in the context of transracial and transcultural adoptions within contexts marked by widespread racial or cultural prejudice (the typical example is of non-white children being transferred to white parents). Another concern is that, where their parents do not share their culture or race of birth, children may “grow up without the tools necessary to live in a world shaped by pervasive and seemingly ineradicable racism.”45 Another undesirable outcome is that children’s purported interests in being raised in cultural communities that will provide them with access to a wider range of options may be exploited as illegitimate rationalizations for efforts to destroy their parents’ cultural communities. In such cases motivations might include assumptions of cultural superiority or a desire to clear the community from the land. This concern is not without precedent. Examples include the Sixties Scoop in Canada, the Stolen Generations in Australia, and the Indian Adoption project in the United States, which all involved transferring Aboriginal children to non-Aboriginal parents.46 Concern about such outcomes is also reflected in the prohibition of the forcible transfer of children from one group to another in both the United Nations Genocide Convention and the Declaration on the Rights of Indigenous Peoples.47 If the arguments in this section have been successful, then the challenge to the presumption that children will be raised by their present parents has been rebuffed and a positive argument, based, like all the arguments in this chapter, on children’s interests, has been made for a prima facie right of parents to raise their children, subject to the limitation that parents be “good enough.” Children’s Interests and Integrationist Policies This final section considers a possible challenge to the presumption that parents can only be expected to share their own values and identities with their children. According to this challenge, even if there

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are good reasons to resist transferring minority children to parents in dominant cultural communities, it may still be possible to maximize their children’s choice-based autonomy interests by requiring their present parents to raise them to be able to become members of cultural communities that will provide them with access to a wider range of options. A response to this challenge is developed, first, by suggesting why it is not reasonable to expect parents to raise their children in this way and then, second, by considering a proposal by Daniel Weinstock that state institutions perform this task instead. Discussion of concerns with this proposal leads to further principles to inform the design and application of cultural rights, which, it is shown, also provide a basis for answering the last two questions raised by liberal multiculturalism. Problems with Raising Children to Belong to Other Cultural Communities While there can be no doubt that some parents are capable of raising their children to become members of cultural communities other than their own, difficulties identified in psychological literature suggest good reasons to resist making this a general requirement for cultural minority parents. One problem is that this proposal is likely to cause problems for children’s identity development. The reason is that it is likely to result in parents sending their children mixed messages about values and identities as they encourage their children to adopt one set of identities and values while modeling a different set as they lead their own lives. This is problematic, because, as Erik Erikson has emphasized, children’s development requires parents to exhibit conformity between the values they live by and the values they seek to instill: “parents must not only have certain ways of guiding by prohibition and permission, they must also be able to represent to the child a deep, almost somatic conviction that there is meaning in what they are doing.”48 This suggests that parental efforts to raise children to belong to a different culture face great difficulty, because, as Erikson suggests; “no matter what we do in detail, the child will primarily feel what it is we live by.”49

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Even if these concerns are surmountable, a second problem is that parents will often lack the requisite knowledge to raise their children to belong to another culture. This is illustrated by reference to psychological studies on the socialization strategies of immigrant parents. Similar to the proposal being considered here, studies suggest that immigrant parents often do try to instill values they believe will be adaptive in the new environment and do not generally try to socialize their children to replicate their personal values.50 Studies also show, however, that such efforts encounter significant obstacles. These include the difficulty of achieving sufficient “competence within the host culture” to identify important values and determining successful ways to integrate the ethnic and host culture values they have chosen to transmit to their children.51 Thus, while some parents can and do raise their children to become members of cultural communities other than their own, the difficulties such efforts are likely to encounter suggest that it would not be reasonable to require this as a duty for cultural minority parents. Integrationist Policies Of course, parents do not present the only possible means for raising children to belong to a different culture. In discussing the case of one type of cultural minority, linguistic minorities, Daniel Weinstock has described an interesting proposal that suggests a way to advance children’s interest in being raised to be able to access a wider range of options while “leaving the intimate sphere of the home untouched.”52 This offers the advantages of neither denying parents their right to parent nor requiring them to try to raise their children to identify with the dominant culture. His proposal is to establish “a moral division of labour between the home front, with respect to which it is appropriate that the student defer to parents except in cases of abuse or severe neglect, and other institutions over which the state appropriately exercises more control.”53 His specific proposal with respect to linguistic minorities is to implement “a school curriculum that gives priority to children’s interests [in maintaining an open future by learning the

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dominant language] rather than to the parents’ interests [in maintaining their linguistic community]” by educating children bilingually in the minority and dominant languages.54 This proposal for bilingual education might be described as a particular example of a more general category of integrationist policies that aim to enable children to transition out of their parents’ cultural communities without completely severing the ties between the children, their parents, and their parents’ cultural communities. Weinstock’s proposal appears to strike an attractive balance between the various interests at stake. On the one hand, children’s well-being and value-based autonomy interests in sharing elements of their parents’ values and identities are respected by leaving their parents free to share their values and identities with them within the home. On the other hand, children’s choice-based autonomy interests in accessing the wider range of options available in the dominant culture are respected through an appropriately tailored integrationist policy. Despite its attractiveness, there are difficulties with this proposal that suggest that further principles are required to govern the application of such integrationist policies. Consider the case of certain individuals who are likely to be worse off under Weinstock’s proposal. These are people who, despite being exposed to integrationist policies, develop identities and values that attach them to their parents’ cultural community. They will now be worse off than their parents for two reasons. First, as Weinstock notes, under conditions of asymmetrical bilingualism, bilingual education will likely undermine the linguistic community in the long run as more and more minority children choose to leave their parents’ community.55 Second, the children who remain in the minority cultural community will not be able to make the arguments their parents could for cultural rights to preserve their cultural community. Since, unlike their parents, their integrationist education should enable them to access the dominant community’s societal culture, their decision to identify with the minority cultural community now takes on the appearance of an expensive taste unworthy of state support rather than their only viable option for accessing a societal culture.

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While this outcome is predictable, it is not inevitable. It only becomes inevitable after the decision has been made to apply the integrationist policy. Once this fact is observed an important question must be raised: What could justify such a community-undermining intervention in the first place? As has been shown, a key assumption informing integrationist intervention is that cultural minority children have choice-based autonomy interests in widening their range of options. This rationale was used to justify overriding their parents’ interests in socializing children to become members of their community. But, surely, if children in minority cultural communities have this interest in accessing more options, this must also be true of children in dominant cultural communities. Yet this possibility tends to go unexplored. Why? It cannot be that that children in the dominant community already enjoy a maximal range of options, for they could have more options if they were required to receive an integrationist education that enabled them to access options otherwise closed to them in the minority or some other cultural community. The reason this possibility is not normally contemplated, I suggest, is that the real (and reasonable) concern is not that children’s options be maximized, but that children have access to an adequate range of options.56 This seems to be the reason that the range of options available to dominant community children is not normally discussed: the range they enjoy is implicitly assumed to be adequate. But, if the appropriate test for determining whether respect for dominant community children’s choice-based autonomy interests justifies imposing integrationist policies is adequacy, then surely this should also be the case for minority cultural communities. If the argument to this point has been persuasive, then the next thing that needs to be considered is the impact of this idea of “adequacy of options.” A first observation is that, while the parents’ interest in the survival should probably not be entirely discounted, what is doing the work here is not a conflict between the parents’ interest in cultural survival and the children’s interests in maximizing access to options, but a balancing of the children’s own interests. On the one

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hand, children’s well-being and values-based autonomy interests in sharing values and identities with their parents will usually provide support for cultural rights designed to preserve their parents’ cultural communities. But, on the other hand, depending on the context, children’s choice-based autonomy interests may provide support for integrationist policies that may conflict with their parents’ cultural rights whereby parents’ interests in maintaining familial connections with their children are respected through the prima facie right to raise one’s children and integrationist policies that raise children to be able to participate in both their parents’ and the dominant cultural community. Since the implications of concern for the adequacy of options will always be contextual, it is only reasonable to propose reciprocal principles for striking a balance: (1) the wider the range of options the parents’ cultural community provides, the weaker the case for integrationist policies and the stronger the cultural rights that can be justified; and (2) the more restricted, and thus less adequate, the range of options the cultural community provides, the stronger the case for integrationist policies and the weaker the cultural rights that can be justified. Application: Cultural Rights of National and Immigrant/ Ethnic Minorities This final subsection applies the general principles articulated above to the general case of national and immigrant/ethnic minorities. In the process, this application provides answers to the second and third questions that had been raised about liberal multiculturalism: can the cultural rights of national and immigrant/ethnic minorities share a single justification? And can the same justification account for the extension of different cultural rights to each type of minority? A key feature of national minorities as understood in liberal multiculturalism is that they sustain their own societal cultures. When societal cultures actually do provide their “members with meaningful ways of life across the full range of human activities,”57 no conflict arises between children’s well-being and value-based autonomy interests that incline toward strong cultural rights and children’s choice-based

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autonomy interests in accessing an adequate range of options. Thus, strong cultural rights designed to preserve the cultural community – like communal self-government – may be warranted. A key feature of immigrant/ethnic minorities, as understood here, is that they do not provide their members with access to their own societal cultures. As the cultural communities that parents are best able to raise their children to join (i.e., homeland cultures) are not present, those communities cannot provide children with adequate ranges of options. While children’s choice-based autonomy interests clearly incline the balance toward highly integrationist policies, it is still the case that children have well-being and values-based autonomy interests in sharing values and identities, including cultural values and identities, with their parents; this provides support for cultural rights, albeit not ones strong enough to make it difficult for them to integrate into the dominant societal culture as they grow up. As an aside, it is worth noting that this supposition finds support in the findings of acculturation psychologists that immigrant youth who are able to develop bicultural identities have the most adaptive outcomes.58 In such cases, application of the adequacy test would incline toward a balance that would support only weak cultural rights, like those Kymlicka calls polyethnic rights. Thus, situated autonomy can satisfy the second and third problematic questions that had been associated with liberal multiculturalism. Conclusion This chapter has argued that parents’ cultural rights, as advocated by liberal multiculturalism, should be understood as reflecting, and certainly not as conflicting with, their children’s interests. This conclusion was reached by advocating the situated autonomy conception of autonomy, which enables us to recognize that people have both choicebased autonomy interests and values-based autonomy interests. Further, the situated autonomy conception of personal autonomy has been shown to inform answers to the three problematic questions associated with liberal multiculturalism. First, in addition to any

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compelling interests of their own, parents should enjoy cultural rights to their own cultures because their having such rights is in their children’s interests (i.e., such rights advance the children’s well-being and values-based autonomy interests). Second, since children’s well-being and values-based autonomy interests are connected to their parents’ cultural identities and not any particular feature of the cultural communities to which the parents belong, this justification of cultural rights holds for both national and immigrant/ethnic cultural communities. And, finally, since children’s choice-based autonomy interests do reflect differences in the nature of the cultural communities to which their parents belong (i.e., the adequacy of the range of options they present their members), appeal to situated autonomy can justify the extension of different types of cultural rights to different types of cultural communities. This being the case, advocates of liberal multiculturalism would be well advised to consider reformulating their arguments to align with situated autonomy. Notes 1 Archard, “Children, Multiculturalism, and Education,” 143. 2 Nickel, “The Value of Cultural Belonging.” 3 Weinstock, “Do the Interests of Children Pose a Moral Limit on Cultural Rights?” 4 Kymlicka, Multicultural Citizenship. 5 Ibid., 27. 6 Ibid., 31. 7 Ibid., 81–2. 8 Ibid., 76. 9 Ibid., 83. 10 Ibid., 84. 11 Ibid., 90. 12 Ibid., 96. 13 Ibid., 96–7. 14 Carens, Culture, Citizenship and Community, 57. 15 Robinson, “Liberal-Democratic States Should Privilege Parental Efforts,” 145–64.

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Clayton, “Debate.” Hannan and Vernon, “Parental Rights,” 176. Morgan, “Children’s Rights and the Parental Authority.” Marples, “Parents’ Rights and Educational Provision,” 31. Morgan, “Children’s Rights and the Parental Authority,” 1. Weinstock, “Do the Interests of Children Pose a Moral Limit on Cultural Rights?,” 60. Ibid., 62. Ibid., 68. Ibid., 58. Ibid., 60–1. Noggle, “Special Agents,” 113. Burtt, “Comprehensive Education,” ch. 4. Archard, “Children, Multiculturalism, and Education,” 157. Ibid. For a fuller account of these arguments, please see Robinson, “LiberalDemocratic States.” See, e.g., Erikson, Identity. Berry et al., “Immigrant Youth,” 303–32. Phinney and Vedder, “Family Relationship Values,” 178–9. Martinez and Dukes, “The Effects of Ethnic Identity,” 504. Hannan and Vernon, “Parental Rights,” 174. Weinstock, “Do the Interests of Children Pose a Moral Limit on Cultural Rights?,” 58. Macleod, “Parental Competency,” 242n6. Brighouse and Swift, Family Values, 95. Hannan and Vernon, “Parental Rights,” 184. Brighouse and Swift, Family Values, 92. Burtt, “The Proper Scope of Parental Authority,” 264. Macleod, “Parental Competency.” Brighouse and Swift, Family Values, 95. Hearst, Children and the Politics of Cultural Belonging, 118. Ibid., 63. Ibid., 117. While such concerns about undesirable outcomes may suggest a further prima facie right that children who must be removed from parents should be transferred to parents within the same cultural community, reasons of space and the nature of the current argument prevent me from doing more than note this as an interesting possibility here. (For a comparative discussion of

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48 49 50 51 52 53 54 55 56 57 58

two American laws that provide examples of opposite answers to this question, see Hearst, Children and the Politics of Cultural Belonging). Erikson, Identity, 103. Ibid., 113. Tam and Chan, “Parents as Cultural Middlemen,” 489–507. See also BenishWeisman, Levy, and Knafo, “Parents Differentiate between Their Personal Values and Their Socialization Values,” 614–20. Oppedal, “Development and Acculturation,” 105; Motti-Stefanidi et al., “Positive Immigrant Youth Adaptation in Context,” 138. Weinstock, “Do the Interests of Children Pose a Moral Limit on Cultural Rights?,” 67. Ibid. Ibid., 68. Ibid., 61–2. Archard makes a similar comparison between options being maximized and being “enough” (“Children, Multiculturalism, and Education,” 156). Kymlicka, Multicultural Citizenship, 76. Berry et al., “Immigrant Youth,” 328; Motti-Stefanidi et al., “Positive Immigrant Youth Adaptation in Context.”

Chapter Three Future Generations and the Ideal of Non-domination Mira Bachvarova

Introduction As Richard Vernon has argued and demonstrated in his own work, a comprehensive theory of “temporal justice”1 should be able to guide us on both backward-looking and forward-looking questions of justice.2 Just as theories of global justice stretch the horizon of justice beyond the state and across international space, so must “temporal justice” expand the domain of “what we owe to those who come before and after us in the stream of time.”3 This view is part of a rich threedimensional perspective on justice, one that is admirably exemplified in the breadth of Vernon’s work and his extensive contributions to political theory. In this chapter I put forward the idea that, in addition to being both backward-looking and forward-looking, a truly comprehensive theory of temporal justice also needs to be concerned with enduring power relations, so as to better contextualize, but also go above and beyond, the questions of rights and fair shares that currently preoccupy intergenerational justice theorists. More specifically, I propose that we should incorporate the ideal of non-domination into the analysis of the temporal dimension of justice. The growth of civic-republicanism over the last two decades has brought increased attention to this ideal as a central pillar in theorizing democratic citizenship and social justice. Whether it can be extended further to address issues of intergenerational justice, however, has rarely been considered. In this chapter I develop a preliminary assessment of this potential. Due to space con-

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straints, I will restrict my analysis to the forward-looking scope of the ideal of non-domination. However, as my argument in the second half of the essay will show, a non-domination-based account of what is owed to future people must in some sense be also backward-looking.4 In the first part of the essay I pose the question whether the ideal of non-domination could be meaningfully extended to relations between present and future people, and if so, in what respects. I consider two different approaches, both of which have been partially developed in closely related works. One is to use domination, and by extension non-domination, as a way to characterize the relationship between generations. On this approach the analysis of intergenerational relations mirrors the analysis of relations between dominated and dominating groups amongst contemporaries. The other approach is to treat non-domination as a kind of fundamental good that is distributable across generations. On this approach, the enjoyment of non-domination is something that ought to be attained and maximized for each individual, and the analysis of intergenerational relations is concerned with identifying the obligations towards future individuals that this generates in the present. The conclusion I arrive at is that so far neither of these two approaches is fully compelling. I argue that while the relationship between present and future generations of people could nominally be described as an instance of domination, it is not particularly fruitful to view it this way. This is because such a characterization does not provide the same critical insight, nor does it raise equally pressing moral concerns, as it does when applied to contemporaries. In the second part of the essay I propose an alternative way to incorporate non-domination in the temporal dimension of justice and in the task of identifying what we owe future people. My analysis is inspired by, and aims to expand on, two principles of temporal justice defended in Vernon’s work: “First, obligations of justice arise in relation to past events to the extent that their consequences impede just political relations in the present. Second, we have obligations to pass on to future people the conditions that make just political relations possible for them.”5 Drawing on these principles, I argue that there is

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in fact an important two-fold role for the ideal of non-domination in intergenerational justice – a role that is rooted in a concern not with domination between generations but domination across generations. This role is (1) to identify the perpetuation of enduring forms of domination through time as an intergenerational problem, as well as (2) to define an obligation to pass on to future people the social and political conditions that make it possible to inhibit domination. Non-domination as a Political Ideal Non-domination is a relational ideal, which, in broad terms, refers to the elimination, or at least mitigation, of patterned asymmetries of social power. It is most characteristic of the republican tradition of political thought, where it has figured as a conception of freedom, contrasted with the conventional liberal understanding of freedom as a sphere of non-interference. Although there are some notable differences in how domination is defined,6 generally speaking all accounts of domination in this vein are concerned with the damage to moral and political status inherent in relationships where one party (individual or collective) is structurally disproportionately vulnerable to the arbitrary interference of another. On Philip Pettit’s most cited definition: “one person is dominated by another to the extent that the other person has the capacity to interfere in their affairs … on an arbitrary basis … as the interferer’s wish or judgment – their arbitrium – inclines them.”7 The emphasis in this articulation is twofold. First, not all interference constitutes loss of freedom, but only arbitrary interference, resulting from the whim of the powerful. Consequently, limits on action imposed by just and democratic means do not diminish freedom. Secondly, by singling out capacity to interfere rather than the act of interference itself Pettit captures the republican idea that freedom is compromised whenever a person is exposed to the arbitrary power of another, even if that power is not actually used against them. The paradigmatic example Pettit gives of this form of unfreedom is the relationship between a slave and a benevolent master (or dominus).

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A benevolent master may choose to allow the slave to live completely autonomously, refusing to interfere in any way with the slave’s life. In such a scenario the slave would be able to act unimpeded to make the most of whatever options are available to him. However, it would be absurd to describe the slave as free, because the slave is always fully subjected to the caprice of the master (in addition to all the other constraints in a society that tolerates slavery). At all times the slave must live with the uncertainty of his position, fearful of what the master might decide to do. In other words, the slave is always dominated, even when he is not being interfered with. The inferiority of the slave’s status means he can never truly “look his master in the eye.”8 This is inherent not in the personal relationship between them, but in the institution of slavery and the structures that designate such positions of power and powerlessness. The concept of domination thus captures both the interpersonal and the structural aspect of unfreedom of the dominated. The achievement of liberty as non-domination is thus a common good and is only possible if constituted collectively and institutionalized by the state. This only happens through political participation, and democratic mechanisms for contestation and accountability. (Non)Domination as a Relationship between Generations In considering whether non-domination forms an aspect of temporal justice, a natural place to start is to consider whether the relationship that exists between generations of people can itself be characterized as one of domination. There are aspects of this relationship that make the concept intuitively appealing – for example, the fact that the present operates under conditions unilaterally shaped by the past, and that it can in turn arbitrarily manipulate the options of those in the future. Lack of direct reciprocity is a fundamental feature of intergenerational relations and poses a distinct problem for justice theorists. There is thus at least some sense in which “the power-relation between present generations and remote future generations is radically asymmetrical.”9 There are different ways to think about what puts a generation in an advantageous – and potentially more powerful – position vis-à-vis

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the rest. For instance, Immanuel Kant thought that, by the nature of accumulation of knowledge and progress of industry, future people are always benefitting disproportionately from the creative labour of those in the past, as the latter leave the world improved for their descendants.10 In his view this constituted an inherent and inescapable injustice; one that is embodied by the example of spectacular medieval cathedrals, which took multiple generations to complete and whose splendour was never enjoyed by those who built them.11 In contrast, most contemporary theorists, driven strongly by environmentalist concerns, see intergenerational injustice running in quite the opposite direction. What needs to be considered here is whether the widely recognized lack of reciprocity between generations corresponds to any entrenched positions of power between generations, such that may constitute domination. If that is indeed the case, it is further important to determine whether this domination is contingent, or whether it is inherent and inescapable, similarly to Kant’s view of the systemic inequity in the stream of benefits between present and future. What matters ultimately, however, is whether any domination that may exist between generations is also morally and politically troubling – something that is not as obvious as in the case of unfair distribution of benefits. There are three different perspectives on the applicability of domination to intergenerational relations that have been put forward so far: one presented by James Bohman, on which domination is a default condition in intergenerational relations but can be addressed and remedied through democratic means; one expressed similarly in the environmentalist accounts of Steven Slaughter and Patrick Taylor Smith, according to which domination is not inherent but arises through actions of the present that extend its presence into the future; and one developed by Ludvig Beckman, who suggests that domination is not generally applicable between generations, but may occur in a given context if certain social conditions obtain. I will briefly review these perspectives as I develop the first part of my argument, namely, that if domination between generations can be said to exist, then it is not analogous in its nature nor in its ramifications to domination between contemporaries.

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James Bohman12 offers an interpretation of how non-domination applies to intergenerational justice in the context of democratic theory. He treats overlapping and non-overlapping generations alike and sees children and distant future people as being subject to domination in the same manner – i.e., as non-citizens, and democratically disenfranchised groups. In other words, domination occurs by virtue of the “temporally narrow scope” of our operative understanding of political community. As excluded subjects, children are dominated in that present governments can make policy choices that can limit or eliminate their rights, or that can impose high costs on them in the future.13 The same is true by extension for those who are not yet born. Domination inheres in the capacity of the present to arbitrarily set the conditions of existence that future people will be brought into. What Bohman advocates is the rethinking of our notion of political community as a form of partnership between multiple generations, and consequently, an inter-generational sovereign. Such a sovereign can only be represented through an intergenerational democracy – without such a democracy we are essentially entrenching “enormous asymmetries of power among generations.”14 In turn, this requires representation of past and future generations in deliberation. “The future is part of the indefinite audience to which the public addresses its justifications, giving it a similar political status in present deliberation.”15 In short, the solution in Bohman’s vision is to counter domination by instituting a relationship of trusteeship.16 (This is of course an ideal theory vision that is cosmopolitan in spirit, setting aside the problem that no generation is a single polity and a single demos). Bohman’s well-thought-out argument in favour of intergenerational democracy has many attractive features. There is no doubt that instituting representation of future (and past) people would enrich the deliberative process. This may indeed be a good way to ensure consideration of future people’s interests, and for maintaining a fully inclusive political community. Nevertheless, there are two aspects of his conceptualization of intergenerational domination that are unconvincing. The first concerns treating children and future people in the same category. If overlapping and non-overlapping generations could be grouped together analytically, then this would significantly boost the

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applicability of “domination” in the intergenerational context. However, it is not clear why it is necessary to treat children as analogous to outsiders in order to account for their dominated status. Domination of adults over children is another instance of domination along group difference lines, with the difference being age. If overlapping generations are thought of as social groups differentiated by age, then age difference is not qualitatively different from other kinds of difference that characterize societies in the present, and we can think of the vulnerabilities created by age difference in the same way as those created by race, gender, class, etc. Thus, when we extend care to children we do so because they are existing persons with existing rights, interests, and justice claims. This kind of justice is intergenerational only in the nominal sense, in that it concerns justice issues that arise because different people are in different stages of human life at any given time, and we want to do justice to people through the whole of their lives. Since domination can occur along age group lines, we can be rightfully concerned to ensure non-domination between generational cohorts so understood, as part of justice amongst contemporaries. Secondly, it is not immediately clear that relations of domination can be fully resolved through a form of trusteeship. At best, the present generation can adopt a position equivalent to that of the benevolent dominus – a position of self-imposed constraints. Even if we somehow became able to predict the circumstances and the interests of future people, and if we did everything possible to take them into account so as not to exercise our power over their lives arbitrarily, the fact would still remain that it is entirely at our discretion whether we honour those interests or not. There can be no opportunity or mechanism through which they themselves could check our power or contest our decisionmaking process. The idea of using democratic representation to counter domination between generations would be more compelling if each generation could appoint its own representative. The legitimacy of the democratic process amongst contemporaries derives in no small part from having a direct and equal say in who gets to represent us in decision-making. Future generations, by analogy, are in a situation where the represen-

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tatives appoint themselves and are unable to take any input at all from their constituents. They use their own best approximation of what the concerns, identities, and interests of future people might be. The result is that the inclusion of hypothetical future people is meant to make the actual power of the present non-arbitrary and non-dominating vis-àvis the actual people who will be living in the future. This is difficult to accept, however, because it implies that it is the good intentions and best efforts of the representatives (rather than their accountability, or their success in representing) that legitimate the power of the present, and this is inconsistent with the idea of non-domination. This kind of inclusion still leaves the present in the position of a benevolent dominus – it mitigates the domination, but it does not change the power relationship. Of course, using our power over the future benevolently would be no small accomplishment. Doing everything we can to be a benevolent dominus vis-à-vis future people could make a considerable difference to their quality of life, and allow them to fashion their existence out of much more favourable social and material conditions than those we are otherwise likely to create. In this sense, one could argue that even if one’s dominating position cannot be helped, one still has a moral obligation to be as benevolent a dominus as possible.17 Such an argument would rely on the same intuition usually held in the case of children and parents, where even if we think that the domination of parents over children is impossible to avoid on account of the inherent dependency and power disparity between them, we nevertheless expect that parents ought to act in such a way as to maximize their children’s well-being. Likewise, we could also insist that our policymaking on issues such as energy, climate change, sustainable development, etc. must be guided by the objective to create (or preserve) the best possible physical and social environment for future humans. From an environmentalist perspective, Steven Slaughter and Patrick Taylor Smith each advance a different interpretation of domination between generations, not as a generalized problem of exclusion, but as a by-product of our ability to have increasingly profound impact onto the future. Slaughter argues that “it is possible to see the effects

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of ecological crisis and harm as consisting of a particular form of domination that persists across time and space.”18 In his view the ability of humans to have a lasting impact on their natural environment in effect extends their presence into the future. It also increases the vulnerability of others and makes them more likely to experience domination. Harm caused to the ecosystem, therefore can be seen as a “process of domination through ecology.”19 Using up resources in the present without regard for the future entrenches a power asymmetry between generations that is as much a dominating relationship as if the resource-consuming generation were there in person to deprive its successors. This relationship is separate and qualitatively different from the distributive injustice entailed in depriving them of resources. “The concern for people being affected by ecological effects and the countervailing action of the republican state are not motivated by the ideal of enabling future generations to enjoy the same standard of living, but rather to prevent those people from being dominated – that is, to remove or moderate the shadow of constantly living at the mercy of people who did not fully consider the ramifications of their actions on other people.”20 Echoing similar concerns, Patrick Taylor Smith explains why domination between generations exists – and how it can be alleviated – by introducing a distinction between “formal power” and “substantive power.”21 Formal power is the power that the present has by virtue of its position in time, and that is inherent in intergenerational relations. This power, by its nature, cannot fluctuate; each generation holds it in the same way and to the same extent. Substantive power, on the other hand, “waxes and wanes.”22 It flows not from the direction of time, but from the actual decisions and actions taken by the present generation, and more specifically, from their capacity to have a lasting effect into the future. From a historical perspective, it is only in the last few generations, Smith points out, that technological and industrial development has allowed human activity to cause enduring harms to the environment that future generations might not be able to reverse.23 These generations have a much-increased substantive power over the

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future compared to the power that those in the distant past had over them. Since the capacity to affect the future can vary, this means that the intensity of the domination experienced can increase or decrease for different generations. If this distinction is valid, Smith argues, then the ideal of nondomination is indeed salient for inter-generational relations. Non-domination can be pursued by instituting checks and balances within the institutions of the present generation that explicitly aim to constrain this substantive power over future people. Smith’s solution is ultimately similar to Bohman’s – it requires institutionalizing an opportunity for democratic contestation, where different agents within the present carry responsibility to ensure that the interest of the future are represented and protected. Going even further, Smith advances the idea that intergenerational non-domination requires us to effectively reduce our substantive power over the future by pursuing policies that minimize any durable negative impact on the physical environment. In other words, that we eliminate the capacity for our own arbitrary interference. The distinction between formal and substantive power is intuitively appealing, as it highlights the important difference between being in a position that designates power (as potential to do something), and actually possessing this power in real terms. There are, however, three different limitations to the usefulness of this distinction. First, the characterization of substantive power as contingent and possible to constrain is convincing if thinking strictly in terms of power over the material conditions of life and the natural environment. It is certainly within our grasp, if the political will exists, to reduce our carbon footprint, or to stop genetically modifying crops, etc. When we think of the present generation’s power over creating and controlling the social environment, however, it is no longer obvious whether such power is significantly variable across generations; nor is it easy to imagine how its impact can be constrained. It is difficult to say whether we have more control over war and peace than previous generations did; or how we could organize the economy or the state in a way that has

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no binding force on our descendants. Secondly, even on Smith’s own account it still remains a matter of our own discretion whether to diminish or increase our “substantive power” over future people. In other words, it is still not fully established that we can achieve nondomination, rather than merely “soft domination.” Finally, what does the lion share of the work in both Slaughter’s and Smith’s arguments for reducing our power over future generations is the focus on reducing harm specifically. In embracing this criterion as pivotal for the relationship between the present and the future, we once again come up against the question of whether the concept of domination adds any value here, or whether there is a simple harm principle in play that yields these conclusions regardless. From a third perspective, Ludvig Beckman has argued that intergenerational domination is not a built-in feature of intergenerational relations, nor an inevitable feature of our environmental footprint, but rather a potential outcome of particular policies or actions undertaken in the present, and can thus only be assessed on a case-by-case basis.24 For example, his analysis finds that the emission of greenhouse gasses in the present (and resultant climate change in the future) does not in fact amount to an instance of intergenerational domination, but that constitutionalism, on the other hand, does. I discuss the latter example in the final section of the essay, but first it is important to outline the serious reasons that Beckman presents to be sceptical of the broad applicability of the concept of domination to intergenerational relations. If we operate with Philip Pettit’s widely used definition of domination, we will find some of its crucial components either absent or indeterminate in the relationship between present and future. Most significantly, for example, Beckman points out that any generation is subject to the decisions made in the past, but no generation is actually subject to the capacity of the past to interfere arbitrarily in the present.25 He takes capacity to interfere to imply an ability to take a new action that has not already been taken. On this interpretation, no one living in the present has to live in fear of what the past might do – all of the past’s decisions and actions are already known. They

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cannot interfere with us on a whim. What we are saddled with are the consequences of the actions of the past, but these consequences are by and large predictable. Furthermore, Beckman observes that neither the present generation’s position in time nor its corresponding ability to impact the future are such by design.26 They are not products of the social order, and thus it is questionable whether they constitute the same kind of moral wrong – “to be unfree, is not to be the victim of what happens but to be the victim of what is done to you.”27 Finally, the important inter-subjective component to domination identified by Pettit is absent between non-overlapping generations, as they will never need or be able to “look each other in the eye.” The asymmetry of power between generations does not carry with it a loss of social status for the weaker party.28 Beckman’s latter argument touches on what is perhaps the most compelling reason why the concept of domination may not be a very fruitful way to characterize the relationship between generations. This raises the question whether it’s morally troubling in the same way. The moral wrong that both Slaughter and Bohman are concerned with is disregard for the interests of future people. This is certainly a central element of domination, but disregard of each other’s interests can also take place amongst equals who are not in a subordinate relationship. In Pettit’s account the wrong of domination also comes from the experience of uncertainty and of subjection; the problem is morally unacceptable use of power that designates some people into subordinate roles and thus fails to treat them as moral equals. It entails a certain kind of indignity. This is something that can be redressed – we could construct our social relations differently. There is nothing we can do, however, about the passage of time and the fact that there is a generational sequence. Furthermore, as Beckman points out, there is no element of living with uncertainty as to what past generations might do, those who are in the present already know the legacy of the past (though surprises are always possible). Going back to the benevolent master example, it is unclear what would be morally troubling in the scenario in which

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the future’s interests were very well protected by the past. Consider, for instance, from the perspective of the present, that our predecessors had left us extremely well off in every important political, social, and environmental respect. It is hard to imagine, if that were true, that we would feel aggrieved that they had been in a position to arbitrarily determine our fate just by virtue of existing before us. This is in contrast to the same relationship between contemporaries, where, as Pettit says, no amount of good intentions and good results can make the position of a slave acceptable; even if the slave owners randomly found themselves in that position we would want to eliminate the reprehensible position itself from our social order. Thus, ultimately, what troubles our moral intuitions about the relationship between generations is the distribution of costs and benefits, i.e., the effects of the actions of past people on future people. In contrast, what troubles our moral intuitions about domination among contemporaries is the entailed subordination, and the related vulnerability to suffering indignity and powerlessness. Moreover, relations of domination between generations – understood as one party’s unchecked power to arbitrarily steer events and set the conditions for the future existence of the second party – are not subtle or contingent on any political features of the groups concerned. They are embedded in the concept of a “generation” itself. While analyzing domination as an aspect of intergenerational justice is possible and can be informative in context, there is little that is new to uncover about where generations stand in relations to one another. This stands in contrast to analyzing relations of domination within the same generation, which invites much more critical insight, both in terms of pointing out forms of domination that are not obvious, and in terms of promoting social change. We have serious reasons, then, to be skeptical of the relevance of the ideal of non-domination to the relationship between present and future people. However, this does not yet mean that non-domination is wholly irrelevant to temporal justice. To the contrary, in the rest of this essay I argue that our real concern should be with relations of domination that span across generations, rather than with relations of domination between generations.

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Non-domination as a Good Frank Lovett develops a theory of social justice as minimizing domination, where he frames non-domination as a fundamental good of human flourishing. According to Lovett, justice understood as minimizing domination requires that we should not discount the domination experienced by future generations. Since the decisions we make today will affect the amount of domination people experience in the future, we need to include this future amount when considering how to minimize domination overall. In essence, we have one contiguous community of potentially dominated subjects (“counting the domination of each person in all generations equally”). In Lovett’s view, then, the question of intergenerational justice is how the good of nondomination should be distributed across generations.29 What would need to be worked out is whether maximizing non-domination for people in the current generation might be something we need to forgo in order to minimize even greater domination further on in time. He suggests that this sort of principle could guide us on practical issues such as the level of consumption of natural resources, even though the relationship between such policy issues and domination might itself be quite complex. It is, however, difficult to see how non-domination could in fact be the sort of thing that could be adequately measured and distributed across generations. It is true that the decisions of present-day politics will have an impact on the shape of power relations in the future, and on the vulnerabilities of social groups. Indeed, it is very important to take such considerations into account, and we may be well positioned to assess how our actions and policies affect the continuity of currently existing forms of domination, and the likelihood of their perpetuation into the future. However, non-domination is a structural ideal, and thus it is difficult to hypothesize what its “maximization” would look like without a full picture of future social structures. While Lovett’s treatment of non-domination as a fundamental good of human flourishing is compelling, the logic of estimating an “expected sum total domination experienced” in a given generation stretches the

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imagination. It transforms a minimalist moral principle into a complex calculus of probabilities that diminishes its intuitive appeal. Moreover, it appears, perhaps inadvertently, to displace the focus of analysis from the continuity of social structures that produce domination to the repetition of domination as an individualized experience (correlated with its intensity). Nevertheless, Lovett’s theory rests on a correct premise, namely that what should matter for proponents of non-domination is not so much the domination that exists between generations, but the likelihood of domination being experienced within each successive generation. This is the premise on which I also proceed in outlining an alternative framework for non-domination as a component of intergenerational justice. My approach differs from Lovett’s in requiring that relations of domination be addressed in the intergenerational context as distinct from, and additional to, matters of distributive or retributive justice. Promoting Non-domination into the Future Instead of attempting to predict and minimize domination as an individual experience at a future time, I suggest that the most plausible and fruitful approach is to focus on constraining the perpetuation of known structures of domination through time. This has two aspects. The first is to highlight the enduring nature of some forms of domination as an intergenerational problem that concerns not only the past and present, but also the present and the future. That is to say, pervasive and enduring patterns of domination can be viewed as a collective action problem that will require inter-generational cooperation to address. In effect this expands the scope of obligations that each generation has to the next (even though the basis of these obligations is not to repair relations of domination between generations). The systemic and resilient character of some forms of domination is a result of the perpetuation of power relations through time, over many cohorts of powerful and vulnerable subjects. It is important to recognize that disrupting these power relations is a future-oriented task, and one that requires persistent effort and vigilance that can stretch over several generations. This is true, for example, of enduring

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forms of domination between distinct social groups that have been replicated over multiple generations – for instance, on the basis of colonial relations, or religious, racial, or gender discrimination. These forms of domination are wrongs that are ongoing in the present, and are typically framed as challenges for social justice to address in terms of equalizing conditions and opportunities in our current time and place. In some instances they are also viewed as matters of historical injustice that require an account of the relationship between agents in the past and agents in the present, so as to work out what distributive, retributive, and/or restorative justice requires, and of whom. Intergenerational justice is, however, not fully sufficient, to address those kinds of wrongs, if justice is understood strictly as “giving to each generation what they are due.” What is also required is a lasting elimination of those power relations themselves – in other words, a path to non-domination supported by the actions of both those in the present and those in the longer-term future. For example, a theory of social justice may prescribe the elimination of discriminatory policies, as well as some redistribution of resources to address inequalities in the relationship between settler societies and indigenous groups. A theory of historical injustice may further highlight the enduring nature of the existing social inequalities and furnish additional arguments for reparations for specific wrongs perpetrated by previous generations, retribution for any perpetrators still living, and return of lands and properties stolen. A non-domination-based analysis, however, would draw attention to enduring illegitimate power relations between these groups and the norms and practices that enable them. It would be indispensable to the logic of institutional reforms (such as options for special representation, accommodation, or self-government) and broader reconciliation efforts within wider society. Importantly, it would highlight that what is needed is not a one-time resolution that “balances the scales” between these groups in a single historical moment, but rather a restructuring of relations that evolves and must be sustained over several generations. The same is true also more broadly, with respect to dismantling social structures, or features of such structures, that precipitate domination between individuals within them. It is often a controversial

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question which structures are implicated in domination, and arguments have been made that institutions as varied as the traditional family, the (capitalist) workplace, the global financial system, or the sovereign state with closed borders are all appropriate cases. Still, however we define them, the point remains that the endurance of domination resultant from such structures is intergenerational in nature. Hence, the non-domination ideal can rightfully be interpreted as one that binds present and future generations together into a common obligation to not only act as justly as possible within the structural constraints of their time, but also to erode or prevent the entrenchment of these structures. The second aspect of constraining the perpetuation of structures of domination through time entails recognizing an obligation to pass on to future people the social and political conditions that make it possible to inhibit domination. It is hard to define a specific list of what those conditions are, even in the present, and it is also exceedingly difficult to predict what they will be in the more distant future. Nevertheless, we can identify some important conditions based on the experiences of contemporary societies, and the broad objectives that can frame public policy decisions in order to promote these conditions. For example, the scarcity of material resources essential to human survival, such as fresh water, arable land, or medications, is highly likely to precipitate conflict and differentiation of people into resource-holders and dependents. There are thus non-domination-based grounds to preserve these resources if they are finite, as well as to prevent their monopolization. This does not yield a theory of what exactly is owed to future generations in terms of shares of such resources. However, as Slaughter points out, it does offer rich justification for the kinds of regulations that would be necessary to secure those shares. Similarly, there are other social conditions that make it easier to identify and thwart domination in the present, and that we can reasonably assume will continue to do so in the future. These conditions can include social goods, such as literacy and education; social resources, such as communication networks; or certain established norms, such as freedom of speech or freedom of movement.

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Most of all, however, the political condition that makes both justice and non-domination possible is the presence of strong, incorrupt, and genuinely democratic public institutions. This is a condition that few societies have been able to fully meet in practice. Nevertheless, while public institutions are typically less than ideal, it is vital that they are more than just aspirational. They need to be able to create institutional and regulatory mechanisms that hamper the concentration of vast social power in the hands of private individuals or groups, and that prevent the usurpation of political power by private interests. For civic republican theories of government, this is already a primary objective of public institutions in the present. And there is no shortage of proposals for how to achieve it through democratic means. One of the most prominent and effective means for hampering the concentration of power, installing checks and balances on political power, and securing the longevity of institutions is the written constitution. Since constitutions are foundational, binding, and by design very difficult to change they are one of the best vehicles for passing on to future people the conditions necessary to inhibit domination. Seen from a different perspective, however, constitutions are particularly problematic precisely because they are so difficult for future generations to modify. For some theorists of intergenerational justice the very idea of a constitution is deeply troubling, as it exemplifies the capacity that the past has to arbitrarily interfere with – or at least to arbitrarily pre-determine – the freedom and opportunities of the future. Thomas Jefferson famously articulated this worry in stating that “We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another.”30 He reasoned that any constitution must be deemed expired every nineteen years, unless reaffirmed by the majority of the day, or else it makes the dead masters of the living. On this view there is serious tension between constitutionalism and non-domination. In my conclusion I will address the notion that constitutions can themselves become a form of intergenerational domination, as if that were true it would render the second part of my argument very weak in practice.

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Constitutions and Domination There are a number of reasons why constitutions are seen by some theorists as instruments of domination. The most obvious, perhaps, is that the very purpose of constitutions is to have a formative effect on the political system, and to set out constraints and rules for the exercise of political power that are long-lasting. For this reason, constitutions are also designed to be much more difficult to revise than other norms and laws. They are explicitly addressed to the future, and they give the generation that first adopts them significant power over those who follow. Even where constitutions are democratically adopted, and even where some mechanisms for their amendment are provided, subsequent generations will realistically have very little democratic say in the content of their most significant law. In developing his neo-republican theory of government Philip Pettit argues that constitutions are vital for the upholding of non-domination. They divide political power between different institutions and they guarantee citizens’ basic rights and the chance to participate as equals in the democratic process.31 In other words, constitutions preserve the mechanisms for ongoing contestation and popular control over political power. It is true that constitutions intentionally bind future people to systems and rules, and dramatically limit their abilities to change those rules. Nevertheless, the constitution itself is not dominating, according to Pettit, as long as it strikes the right balance between not being too easy to amend and not being impossible to amend. A constitution that is too easy to amend would put at risk some of its important provisions that protect non-domination. A constitution that is impossible to amend, on the other hand, would be impossible to improve. The reason Pettit favours amendable constitutions is thus not related to concern about their binding effects on future generations, but rather by concern that future people must be able to amend the constitution in order to improve and update it, and make it more responsive to the new circumstances and new dangers that may come to threaten non-domination in the future.

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Ludvig Beckman provides a succinct but nuanced analysis of constitutionalism as a potential form of intergenerational domination.32 Beckman is largely in agreement with Pettit that not all constitutions instantiate domination between present and future people. Like Pettit, he also concludes that amendment provisions are crucial to that end. However, his view diverges from Pettit’s in his argument that an irrevocable constitution does impose intergenerational domination, even if the substance of that constitution secures non-domination.33 In addition, he identifies another aspect of constitutionalism that makes it a dominating force in practice – the need for future interpretation and application of constitutional text by the judiciary.34 If future judges adhere to an interpretation doctrine that privileges the original intent of the constitution’s creators, then future people will be suffering from both an actual and potential arbitrary interference by the will of the past.35 There are two different responses that can be given to Beckman’s argument, and to the broader concern more generally that constitutions can become a form of arbitrary interference for future people even if they are substantively designed to promote non-domination in the present. The first response is to highlight that the capacities for interference attributed to constitutions are entirely contingent on the rest of the political system. Beckman focuses too much on the constitutional document itself and the possibility of amending it. The content of a constitution is undoubtedly extremely important. However, in assessing how constitutions impact on future people, an equally important consideration is how stable, legitimate, and enduring the institutions upholding the constitution are. A constitutional document that is difficult to amend may nevertheless end up having fairly little impact on future people, or may end up being invalidated entirely. To illustrate this point, consider for example a constitutional document in a weak or failed state. It would be a mistake to assume that such a document will exercise great influence over future generations, if it can barely exercise influence over its present subjects. In contrast, consider also a constitutional document that allows for relatively easy amendment

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procedures, that would make political reforms attainable for any moderately motivated generation. Imagine further, however, that this constitution exists within an old and very stable democratic system, rooted in a conservative political culture with very little appetite for change. It would be a mistake to assume that such a document would leave future generations unencumbered by the political order of the past. However strictly a law is worded, its effects will always be contingent on the wider political system, its conventions and narratives, and its record of enforcement. Constitutions are embedded in the wider institutional structures of the state, and thus cannot be considered entirely in isolation from these structures when we consider them as tools for domination of the past. In other words, the revisability of the document is a different matter from the revisability of the structures that support it. The difference is important because if left unacknowledged it can lead to perverse conclusions – for example, it might imply that failed states are good news for future people. The second response to the worry about constitutional interference with future people is that it is not obvious why this kind of imposition on future people would be morally problematic; or rather why it would be more morally problematic than failing to pass on to them a substantively good (just, non-domination promoting) constitution. There is no reason why our thinking in the present about our obligations to the future has to proceed from libertarian premises, as it were, where the baseline for justification is to leave future people maximally unconstrained by any principles and moral considerations at all. For example, we cannot know how future people might think about racial and gender equality. Ideally, we might even hope “race”- and sex-based distinctions between human beings will be irrelevant to their way of thinking. However, it would be absurd to conclude that a constitutional document that specifies the human rights of minorities and nondiscrimination on the basis or “race” and sex would somehow be an impermissible constraint on future persons’ freedom. I have argued in this chapter that we have an obligation to pass on to future people the social and political conditions that make it possible to inhibit domination. This means that we have a reason to

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value the opportunity that constitutions present for transmitting institutional forms and norms that promote non-domination. One of these is the norm that democratic documents must be open to amendment. A constitution that is revised periodically in ways that keep it consistent with the promotion of non-domination should not be seen as a violation of freedom simply because it originated with a previous generation. The intentions of past lawmakers cannot be arbitrary visà-vis non-domination itself. As Richard Vernon has pointed out, interference is neither avoidable nor automatically problematic by virtue of “arbitrariness” alone: “we are already and inevitably ‘intervening’ in the course of developing institutions and practices that will be the matrix in which future generations come to be. The question is not whether to contribute, but how; and the global context suggests an answer by way of parallel. The possibility of intervention is triggered by state failure and tyranny. By analogy, what we owe to future generations is (not intervention, but the provision of ) a set of robust institutions with the capacity to withstand both ordinary political stress and extraordinary tyrannical abuse.”36 Notes 1 In the rest of this chapter I use the term temporal justice in the same sense as Vernon, i.e., as applying to theorizing justice among agents far removed in time. This is not be confused with Bob Goodin’s use of temporal justice in reference to individual “control over one’s time, the capacity to spend it as one wishes” (Goodin, “Temporal Justice”). 2 Vernon, Justice Back and Forth. 3 Ibid., 3. 4 I set aside issues of historical redress also partly because the analysis of relations of domination amongst contemporaries in many cases already requires a historical perspective (see Young, “Self-determination as Non-domination; Laborde, Critical Republicanism), and thus I assume that it is its applicability to future-oriented questions that begs more justification. 5 Vernon, 6. 6 Most notably: Pettit, Republicanism; Pettit, A Theory of Freedom; Laborde, Critical Republicanism; Lovett, A General Theory of Domination and Justice.

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Pettit, Republicanism, 52. Ibid., 87. Lukas, “Intergenerational Justice.” Cited in Ball, “The Earth Belongs to the Living.” Ibid. Bohman, “Children and the Rights of Citizens.” Ibid., 134. Ibid., 138. Ibid., 139. Ibid., 138. This implication is briefly discussed by Smith, “The Intergenerational Storm,” 238. Slaughter, “The Republican State,” 217. Ibid. Ibid., 218. Smith, “The Intergenerational Storm,” 238–9. Ibid., 238. Ibid., 243. Beckman, “Power and Future People’s Freedom.” Ibid., 294. Ibid., 292. Ibid. Ibid. Lovett, A General Theory of Domination and Justice, 182. Jefferson, “Letter to James Madison of September 6, 1789.” Pettit, Republicanism. Beckman, “Power and Future People’s Freedom.” Ibid., 296–300. Ibid., 301–2. Ibid. Vernon, Justice Back and Forth, 194.

Part Two Human Rights and Global Justice

Chapter Four Human Rights and Normative Agency Charles Jones

Introduction The idea of human rights is both popular and potentially promising as a means to understanding and implementing the conditions for a morally defensible global politics. But the widespread appeal of human rights does not, of course, entail that such rights improve the life prospects of individuals. It does not ensure that such rights are justified, nor even that they exist. So we must step back and ask, in a general way, what human rights are, what are their contents, and on what grounds are we justified (if we are) in affirming them. In this chapter I propose to consider one influential answer to these questions: the claim that human rights serve to protect the normative agency of individuals. By outlining and evaluating this claim, its rationale, and how it might be defended against some key objections, I hope to show that, while normative agency is indeed a plausible candidate for grounding human rights and, therefore, for reaching firm conclusions about what human rights we have, what they are rights to, and why we have them, there are reasons to expand the grounds of human rights beyond normative agency. My argument, in short, is that normative agency is (1) a promising idea around which to formulate a justification of human rights and that (2) such a justification can withstand a critique suggesting that individual autonomy is overrated as a fundamental moral premise, but that (3) there are several good reasons to expand the justifying grounds

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of human rights beyond normative agency, reasons focused on a more pluralist set of basic grounds. In particular I focus on the tendency for an exclusively “normative agency” justification to make it difficult to defend the basic rights of some of the most vulnerable human beings (children, the disabled) and, in its emphasis on human distinctiveness, to unduly privilege human beings over non-human animals with whom we share many of the features (vulnerability, sociability) that can ground basic rights and that are so much in need of protection. This so-called “human supremacism” objection is powerfully argued by Will Kymlicka; in my view it qualifies but does not refute the claim that normative agency is a foundation of human rights. The objection should lead us toward a pluralist account of the grounds of human rights. Normative Agency as the Foundation of Human Rights The view I would like to consider is part of the so-called orthodox tradition of thinking about human rights in that it says these are moral rights we possess in virtue of being human. The specific version of this view with which I am concerned, set out most memorably by James Griffin, focuses on a particular feature (or features) of human beings that serves as a candidate ground of human rights. In short, it says that human rights “are possessed by human agents simply in virtue of their normative agency.”1 The idea is that the point of human rights is to protect our human status, understood as “our status as normative agents.”2 A normative agent is a person, thus Griffin calls his view the personhood account, where personhood constitutes the standing or status that entitles us to the protections provided by human rights. To be a normative agent is to reflect on, evaluate, and act upon a conception of the good life for oneself. In turn, normative agency is classifiable into three elements: autonomy, liberty, and welfare or minimum provision.3 Autonomy is “self-decision” or deciding for oneself amongst the values to guide one’s life. An autonomous person chooses their own “path through life” rather than being led by others.4 Liberty is to not

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be forcibly stopped by others from the pursuit of the life one has autonomously chosen for oneself; and welfare or minimum provision, including basic material resources and minimum education, refers to the conditions needed for a person’s choices to be real and effective in practice.5 The distinction between autonomy, liberty, and minimum provision as grounds for human rights is related to the difference between protecting our capacity for normative agency and protecting our exercise of it.6 Autonomy refers to a capacity: it is the ability to decide for oneself concerning the path to take in leading a worthwhile life. Liberty refers to the exercise of normative agency: it is being able to act in pursuit of the goals one has chosen without interference by others. Minimum provision refers to the conditions, beyond liberty, needed to ensure normative agency, namely, the food, shelter, education, medical care, and leisure necessary to both decide and act on one’s conception of the good life. It is because normative agency – reflecting, deliberating, choosing, and acting on what we see as a good life for ourselves – has such value that it needs protection. Persons can live the life of normative agents only if they are not dominated by others, prevented by others from pursuing their chosen way in life, or prevented by lack of education or subsistence from being able to pursue it. Consequently, the list of “highest-level human rights” to autonomy, liberty, and welfare provides the basis for making sense of human rights practice as embodied, for instance, in the Universal Declaration of Human Rights. Personhood or normative agency is possible only if the following are protected: life, security of the person, political voice, free expression and assembly, basic education, and standard of living.7 Normative agency can seem quite expansive as a basis for human rights, so it is important to point out its minimalist character. As conceived by Griffin, human rights protect our status as agents but do not provide everything that might be necessary for each of us to flourish. “They are protections of that somewhat austere state, a characteristically human life, not of a good or happy or perfected or flourishing human life … Protecting normative agency requires protecting certain human capacities: namely, those without which one’s options in life

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shrink so drastically that life as a normative agent is undermined.”8 This minimalism serves to answer concerns about both the demandingness of human rights and their universality: protecting the austere life of an agent is meant to be something that can be achieved in practice without excessive cost and that can be accepted by everyone regardless of their wide-ranging substantive conceptions of the good. It is instructive to consider a possible parallel between Griffin’s personhood argument and John Rawls’s appeal to “the capacity for moral personality” as a sufficient condition for being entitled to equal justice and as a way to interpret the idea of natural rights. While Griffin appeals to normative agency, Rawls appeals to the distinguishing features of “moral persons” who possess two basic features: the capacity for a sense of justice and the capacity to form, revise, and pursue a conception of their own good.9 In his theory of justice as fairness, Rawls assigns lexical priority to the protection of basic rights and liberties on the grounds that they secure our “highest-order interests” understood in terms of these two basic capacities.10 Rawls’s defence of the basic rights and liberties covered by his first principle of justice asks us “to consider which liberties are essential social conditions for the adequate development and full exercise of the two powers of moral personality over a complete life.”11 In pointing to this parallel between Griffin’s argument from normative agency and Rawls’s argument from our two fundamental capacities, I merely want to exhibit the centrality of this type of reasoning in recent political philosophy. One final preliminary point is worth making, namely, that Griffin links normative agency with one interpretation of the idea of human dignity.12 The idea is that human rights protect our capacity to choose our conception of the good life for ourselves, to live according to judgments we make about the values to endorse in living our lives. Griffin resists any simple appeal to the dignity of persons as too vague to be helpful in identifying, understanding, and justifying human rights, but he endorses the appeal to “the dignity of normative agency” because it points to the justifying grounds of autonomy, liberty, and minimum provision and it emphasizes our use of reason to freely determine our decisions about value. As he puts it, “normative agency constitutes

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what we call ‘human dignity.’”13 The link between dignity and agency will reappear below in the context of Kymlicka’s “human supremacism” objection to normative agency as the key ground of human rights. But I now turn to an objection to any view that prioritizes autonomy as a key moral and political value. The Autonomy Objection Sarah Conly has made the case “against autonomy” by arguing that we overvalue it: in many cases individuals are better off when “we interfere with their ability to direct their lives according to their own reasoning.”14 We are systematically bad at reasoning about and making our own autonomous choices in many spheres of our own lives, including most obviously choices affecting our health and long-term financial interests. The gist of Conly’s case rests on her convincing description of our “poor instrumental reasoning” linked to cognitive biases such as optimism bias (believing things will work out better for us than the odds suggest), time-discounting (undervaluing future gains and losses), and status quo bias (preferring an existing arrangement regardless of its merit).15 Consequently, instead of respecting individual autonomy we should “help one another avoid mistakes so that we may all end up where we want to be.”16 For Conly, respecting persons does not demand respecting individual autonomy. Although Conly’s argument is aimed at defending coercive paternalism as against any sort of liberal harm principle, it should be clear that the argument itself threatens any account of human rights grounded in individual autonomy. The normative agency conception must take account of Conly’s criticism because the defensibility of a core value, autonomy, is directly at issue. A key element of personhood is autonomy; in fact, it is probably accurate to say that autonomy is the most important of the three core constituents (autonomy, liberty, and welfare) of human normative agency that purport to ground human rights themselves, since autonomy is the first of Griffin’s three “stages” of normative agency.17 So if autonomy is questionable, the personhood conception of human rights is weakened severely.

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How would a defender of the personhood conception reply to this objection? I propose to show that we can accept Conly’s critique of autonomy while holding on to autonomy as a key basis for human rights. The reply to Conly should point out, as Griffin does, that “not all forms of autonomy are the autonomy to which we attach great value.”18 As he argues, in calculating my own income taxes each year I am more autonomous (in one sense) than if I were to hire a tax accountant to do my taxes for me. But the autonomy to which we are, and should be, strongly committed is not the autonomy to calculate one’s own taxes but the autonomy that, along with liberty and welfare, is part of being a normative agent. My normative agency is unaffected by having someone else do my taxes.19 What matters morally is a person’s autonomy to reason about, evaluate, and choose a conception of a good life for themselves. The problem with this reply, however, is that it does not address Conly’s worry that human beings are systematically poor at reasoning about what is good for themselves. Nonetheless, I think a reply is possible. The key move is to point out that we may distinguish different objects about which we might reason when we are thinking about how to live our lives. We can think about short-term goals and long-term goals; we also reason about both means and ends. It could turn out that autonomy is more defensible with respect to some of these objects of reasoning than others. And even when we can reason well about what goals or ends to pursue, there may still be emotional or motivational obstacles to acting on the results of deliberation. But Conly would seem to agree with the point I am arguing here, that individual autonomy in choosing for oneself a conception of a life worth living is not something we should hand over to others.20 On the contrary, one way of describing her case “against autonomy” is as a rejection of an individual’s choice-making, in every context, about what is good for them, on the grounds that they are (in fact, everyone is) susceptible to systematic biases in reasoning that more or less guarantee bad results from her or his own perspective, i.e., the perspective of her or his autonomously chosen conception of a worthwhile life. In other words, Conly is rejecting autonomy in everyday decision-making, not everywhere but

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in specific cases in which harmful mistakes are overwhelmingly likely and where much more good is likely to be produced by intervening to prevent such autonomy. But she does not present a case for rejecting autonomy is the sense needed for grounding human rights, that is, autonomy in evaluating and deciding for oneself the value of particular options for leading a good life.21 Nor does it seem plausible to claim that Conly’s objection to autonomy in the case of a person’s health or long-term financial planning applies directly to the more general case of an individual’s reasoning about what is worth pursuing in life. In fact, in directly addressing the content of the right to autonomy that serves as part of the justification of human rights, Griffin explicitly mentions decisions about food and investment in order to explain what he does and does not mean by autonomy.22 Autonomy in this specific sense intended, i.e., as partly constitutive of normative agency, concerns a person’s decisions about the kind of life they should lead; it does not concern every decision a person might make. Consider Griffin’s example of an adult son who lets his mother order his restaurant meals even though he would rather do it himself. In the everyday sense of the term “autonomy,” this would reduce his autonomy since it reduces the number of decisions he makes for himself; but it would not affect his autonomy in the specific sense of deciding for himself what makes his life go better or worse. The same goes for investment decisions: if a person decides that their interests are best promoted by, to some extent, deferring those decisions to an expert, this can be both a reduction of autonomy in the everyday sense but irrelevant to their autonomy in the normative agency sense. Of course, even in the everyday sense of autonomy, it can be rational for them to give it up so that they can better promote their interests overall. This way of putting the matter seems to be precisely what Conly is recommending, but if so it should be clear that it leaves untouched the case for or against autonomy understood in the normative agency sense. Yet it is possible that Conly’s argument in not limited in the way I have been arguing. So we should consider a question raised by her critique of autonomy: does her case extend to cover the terrain of autonomy in the normative agency sense? In other words, if we

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accept that overcoming systematic individual reasoning biases justifies coercive paternalism, in particular spheres of our lives, aimed at promoting our best interests, do such biases also potentially interfere significantly with our capacities to decide for ourselves – even if only in a “piecemeal and incomplete” way – what is worth doing in life?23 If the answer to this question is yes, then Conly’s case would threaten autonomy in the normative agency sense. How should we go about answering this question? In reply to the objection that coercive paternalism fails to respect persons by overriding their decisions, Conly says that “if anything, coercive paternalism manifests respect for the value of human lives by trying to help people live fruitful lives in which they are able to achieve their own ultimate goals.”24 In other words, Conly conceives her attack on autonomy as a means of enabling people to pursue and “achieve their own ultimate goals.” She is not arguing that those goals themselves are to be imposed from outside rather than chosen from the inside by each one of us. In fact, Conly is worried that human beings have a natural propensity to conform and that, paradoxically, paternalistic education can help us to lead lives that truly reflect our own values.25 Conly also makes the interesting claim that “in some cases being denied choices can be liberating” and that paternalistic “government intervention allows us to focus our decision making on the decisions we actually care about.”26 It can be psychologically beneficial for us to leave it to qualified others to determine what foods should be legal and what makes cars safe to operate. Again we see, I believe, that Conly’s powerful case against autonomy should not be understood as denying the value and importance of deciding for ourselves. Rather, she is defending state intervention in some areas of our lives and with respect to some of our decisions with the aim of leaving us free – autonomous – with respect to the big decisions we care about, including choice of careers and personal relationships.27 When it comes to our capacities to make moral judgments or to decide how to live our lives, Conly is concerned to protect our autonomy. She defends coercion when it can pass a cost-benefit analysis aimed at promoting individuals’ welfare as

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seen from their own perspective, where “the whole point is to make people better off by their own lights.”28 Human Rights, Interests, and Pluralism Recall that autonomy is one aspect of normative agency and that the latter is the proposed ground of human rights with which I am concerned. But perhaps normative agency is too limited a basis for the range of human rights we should be prepared to defend. One way to put this concern into perspective is to place it within a venerable rights tradition that links rights to interests. Consider Griffin’s claim that human rights are “protections of key human interests. They are protections in virtue of imposing obligations on others to do or to forbear.”29 He identifies autonomy, liberty, and welfare the three elements of normative agency – as “especially important human interests” from which we derive the strong protections known as human rights. Or consider Griffin’s claim that it is “because of the special importance … of these particular human interests that … we ring-fence them with the notion of human rights.”30 Let us consider for a moment the idea that some interests are especially important. Richard Vernon persuasively argues that rights matter because they protect interests of a particular type, namely, “interests that have a special importance to human life,” such as the interest in physical security, whose protection has a profound and “pervasive effect over the kind of life I can have, not just over my ability to do this or that particular thing.”31 Rights, moreover, protect only those interests (such as security and subsistence) with “general importance, that is, they cannot be based on some idiosyncratic interest of mine but must be based on the idea of an opportunity or a resource that all or most lives can be said to depend on.” In other words, the interests whose importance generates rights “are things that people need whatever their personal or idiosyncratic goals in life.”32 Vernon’s two points, on the special and general importance of interests, are well taken. It is plausible to see Vernon’s discussion as applying to the question of human rights in particular. If so, his claims generate questions for the

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defender of human rights to ask when considering candidates for the content of such rights. First, is the interest the right would protect fundamentally important in living a recognizably human life? Second, is the interest important for all persons regardless of specific differences between them? As we have seen, Griffin understands his own view as a species of interest-based defence of human rights. One might think that this account is in line with the application of Joseph Raz’s view of rights in general to human rights in particular, as follows. As Griffin puts it, on this Raz-inspired view, “a human right arises when there are universal human interests sufficient to justify imposing the correlative duties on others.”33 But Griffin is explicit that Raz’s explanation of a right fails because, while it allows more interests to count (beyond autonomy, liberty, and welfare) as grounds for human rights, it threatens to expand the potential range of interests “to fill most of the domain of well-being.”34 For example, if we have an important interest “in there being a rich array of options in life from which we may choose,” and if this justifies imposing duties on others to protect that interest, we will be committed to accepting human rights-based duties that extend well beyond what is required to protect normative agency itself. But, according to Griffin, this has two negative implications. First, we lose the ability to distinguish what human rights require from what may be demanded as a matter of distributive justice (e.g., higher levels of wealth and cultural resources); and second, we sever the link to the idea that human rights protect the moral minimum we can demand of each other as human beings.35 As we have seen, Griffin’s appeal to normative agency or personhood as the ground of human rights serves to limit their reach to protecting “that somewhat austere state, a characteristically human life,” rather than “a good or happy or perfected or flourishing human life.” The content of human rights, on this view, is therefore limited in that “they are rights not to anything that promotes human good or flourishing, but merely to what is needed for human status.”36 Accordingly, if one insists on categorizing Griffin’s view as an interest-based account of human rights, this is potentially mislead-

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ing because only a very limited class of interests count as legitimate grounds of human rights: the basic human interests in securing the conditions of personhood or normative agency, understood in terms of autonomy, liberty, and minimum welfare provision. And one could argue that this is an improvement on the open-ended interestbased conception because normative agency identifies the limited range of interests on which to focus when justifying human rights, interests that pass Vernon’s tests of special and general importance. It is nonetheless plausible that normative agency is not the only defensible ground of human rights, that there are other interests sufficiently important to put others under a duty.37 John Tasioulas’s main objection to Griffin’s account is that it mistakenly claims that the only appropriate grounds for human rights are those values linked to personhood or normative agency. Tasioulas believes other human interests are sufficiently important to ground human rights, including “accomplishment, knowledge, friendship, and the avoidance of pain.”38 For example, he suggests that the human right to education is based on our interest in knowledge, the human right to work on our interest in accomplishment, and the human right to leisure on our interest in play.39 If this line of thinking is promising, we have the makings of a pluralist defence of human rights. For our purposes, pluralism simply refers to the idea that there is more than one basic characteristic or capacity of human beings that properly serves as a justifying ground of human rights. Is Griffin’s account actually more pluralistic than it might at first appear to be? One might think so, given the fact that the personhood view appeals to three basic values rather than one, thereby making it “trinist” rather than monist.40 But at its core the personhood account focuses on one characteristic of human beings that makes them candidates for human rights, namely, normative agency. Autonomy, liberty, and welfare are distinguished as elements needing protection if agency is to be properly valued and protected, but of these three it seems clear that autonomy is central and that liberty and welfare are valued as means to securing individual autonomy.41 In short, then, Griffin’s view is something close to a monist conception of the foundations of

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human rights. This raises the worry that any candidate human right would be justified only if there is an available agency-based moral explanation for it. And we do find this in Griffin’s account of the human right not to be tortured, an account that emphasizes the role of torture in “undermining someone else’s will, getting them to do what they do not want to do, or are even resolved not to do.”42 While this explanation is insightful and revealing about the purposes of torture, it is at least questionable whether we should think that the causing of severe pain and terror could not, by itself, explain why torture violates a human right. We have been considering the idea that normative agency leaves something important out of one’s grounding for at least some human rights. One way to see the case for a more explicitly pluralist set of grounds is to consider the so-called human supremacism objection to the family of views about human rights exemplified by the normative agency defence. The Human Supremacism Objection I now turn to a different kind of worry about the personhood or normative agency justification of human rights. The problem is that identifying normative agency as both distinctively human and as a necessary condition for possessing human rights has the unwelcome implication that infants, the severely mentally disabled, and non-human animals are excluded from the privileged group of human rights bearers. For present purposes I will focus only on the distinction between human beings and non-human animals and the exclusion of the latter from the category of basic rights bearers. We can call this the human supremacism objection, following the lead of Will Kymlicka, who makes this point as part of his rejection of the “new dignitarian” accounts of human rights whose proponents (including Jeremy Waldron and George Kateb) appeal to human dignity to both defend human rights and exclude animals from primary moral concern.43 Human supremacism is the view that there is a moral species hierarchy in which human beings have pride of place while non-human animals are denied basic

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moral status and potentially left unprotected from human domination, oppression, and violence. Kymlicka makes a plausible case for the claim that Jeremy Waldron, for example, combines his appeal to human dignity with a corresponding assertion of human uniqueness and human superiority to mere animals.44 The worry here is that Waldron is appealing to an old, predominantly religious, conception according to which human beings are special, created in the image of God, and therefore to be accorded higher moral status than the rest of creation, including both the animal kingdom and the natural world more generally. Kymlicka adds to this point the claim that appeals to human dignity have in recent years tended to be strongly correlated with such supremacist thinking. In reply to this view, one might say simply that ever since Darwin we have known that human beings are not special, that we are simply one animal species amongst others, and that therefore we should jettison the belief that the moral status of humans is, by default, at the top of the moral pecking order. This leads to the following question: is Griffin guilty of the human supremacism of which Kymlicka correctly accuses Waldron? On the one hand, Griffin does speak of human dignity as being at the core of his account. The natural rights tradition to which he appeals asserted in the twelfth and thirteenth centuries that human beings are unique, in line with the older Jewish and Christian traditions that we are created in God’s image.45 Griffin also emphasizes the appeal to dignity in this tradition, from William of Ockham in the fourteenth century to Pico della Mirandola in the fifteenth. Pico is a particular hero in Griffin’s narrative precisely because he is taken to have conceived dignity as basically autonomy, understood as the key element of normative agency.46 In fact, Kymlicka places Griffin in the offending category of supremacist defenders of human rights, that is, those who – wittingly or otherwise – illegitimately single out (some) human beings for special moral status and consequently fail to recognize that needs, capabilities, subjectivity, sentience, the capacity to suffer and the vulnerability that follows from it, all of which we share with nonhuman animals, are also defensible grounds for fundamental rights.47

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Yet, on the other hand, Kymlicka’s lumping Griffin together with Waldron and other human supremacist dignitarians seems slightly unfair. Unlike Waldron (and George Kateb), Griffin’s appeal to dignity does not explain that idea in terms of human possession of it along with the consequent denial of moral considerability to animals altogether. Still, he does understand dignity in terms of normative agency, a capacity that, given its picture of freely choosing a conception of the good for oneself and acting on that conception, one would be hard pressed to find in animals in anything like the same form. Griffin’s normative agency defence of human rights has no place for nonhuman animals, but this is objectionable only if (1) one expects to find a place for animals in an argument for human rights, and (2) there is no place for a defence of non-human animal rights alongside one’s account of human rights. It is here that I think the pluralist conception of human rights comes into its own, since it includes normative agency in a central role along with vulnerability and the capacity to suffer that characterize both human beings and non-human animals. In short, what we get is non-supremacist but species-appropriate justifications of rights: non-supremacist because there is no claim that human beings are superior to animals or entitled to use them for their purposes, but species-appropriate because the defence of human rights correctly appeals to both our vulnerability and our capacity to choose freely amongst a range of conceptions of a good life, a capacity accurately ascribed only to humans. This move is almost correct. It avoids human supremacism and emphasizes cross-species continuities in identifying the grounds of human rights, so it is thus far both morally acceptable and empirically accurate. But it is incorrect in demanding that human rights must be partly founded on normative agency: the problem here is that many human beings – such as the profoundly mentally disabled – lack the capacity to form, revise, and pursue a conception of the good for themselves yet they are still entitled to basic human rights in virtue of other features such as sentience. The key point here can be made by quoting the words of the great utilitarian, Jeremy Bentham, who, despite at one time rejecting appeals to natural (or what we would call human)

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rights, nonetheless looked forward to the day “when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny.” Bentham strongly rejected human supremacism by asserting that moral considerability stems from sentience rather than rationality or agency: “The question is not, Can they reason? Nor Can they talk? but can they suffer?”48 One can reject human supremacism, thereby retaining the idea that animals have rights that we have strong duties to protect, without denying the existence of any morally relevant differences between human beings and animals. Griffin’s version of the dignity defence interprets dignity in terms of human normative agency, the capacity to form conceptions of the good life and to pursue these conceptions. We can accept the value of normative agency, noting its role in an account of what makes us human, all the while recognizing that, despite their lacking normative agency, animals matter morally for a range of reasons including their sentience, vulnerability, capabilities, sociality, and needs. But the moral mattering of animals should be explained in terms of their interests and characteristics, such as vulnerability and the capacity to suffer, and there is no reason to eschew an appeal to human normative agency simply because that would pinpoint a feature we do not share with non-human animals. The point, in any case, is that a dignitarian – or at least agency-based – account of human rights need not be a version of human supremacism. Interestingly, Griffin’s own description of normative agency as the ground for human rights explicitly points to its role in distinguishing human beings from non-human animals. Griffin appeals to what he takes to be both distinctive about human beings – i.e., what distinguishes us from other morally considerable beings – and morally significant. His “substantive account” of human rights begins with the claim that, Human life is different from the life of other animals. We human beings have a conception of ourselves and of our past and future. We reflect and assess. We form pictures of what a good life would be – often, it is true, only on a small scale, but

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occasionally also on a large scale. And we try to realize these pictures. This is what we mean by a distinctively human existence – distinctive so far as we know. Perhaps Great Apes share more of our nature than we used to think, though we have no evidence that any species but Homo Sapiens can form and pursue conceptions of a worthwhile life … (The key reason to) value our status as human beings especially highly … centres on our being agents – deliberating, assessing, choosing, and acting to make what we see as a good life for ourselves.”49 My present point is simply to raise the question whether this plausible account of human distinctiveness necessarily commits its defender to human supremacism. If we accept that human beings enjoy a moral status tied directly to their unique possession of normative agency, does it follow that human rights must take precedence over the rights of animals? I would like to make two points in reply to this question, one point resistant to the thrust of Kymlicka’s argument, the other point more sympathetic. First, a commitment to protecting normative agency need not imply that animals may be treated as mere means to human goals. The apparent fact that Waldron’s dignitarianism seems to lack any deep concern for animal suffering does not mean that all defenders of human moral equality must follow him down that road. But second, even though the normative agency or personhood account of human rights does not require a dismissal of animal rights, nonetheless it does make it easier to overlook the basic moral claims of animals. Why so? Here I think the problem lies in singling out normative agency as the ground of human rights. The best way to show this is to explain how a pluralist justification differs from a justification that appeals only to normative agency. A pluralist foundation for human rights has at least three virtues. (1) It acknowledges that we human beings have non-autonomy interests whose existence alone can justify some human rights. (2) It therefore allows the justification to appeal directly to non-autonomy-based human interests – such as the interest in basic physical security, freedom from suffering, and basic subsistence – rather than having to link

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them to one’s autonomy-protecting rationale. And (3) a pluralist account of human rights will include some basic interests – again, like security, subsistence, and freedom from suffering – that human beings share with non-human animals. This sharing of interests makes it more difficult to do what some dignitarians seem apt to do, namely, to overlook entirely the partially parallel case for animal rights. An enormously significant point hammered home by Kymlicka is the tight connection between a range of morally relevant grounds for human rights – such as the possession of basic interests, needs, and capabilities; the need for companionship and social interaction; vulnerability to mistreatment; being embodied subjects of a life – and empirically well-grounded continuities between humans and animals.50 In other words, the evidence overwhelmingly suggests that human beings are not special in such a way that would justify a strong qualitative interspecies moral distinction between them and animals. On the contrary, many of the deepest facts about humans to which we can appeal in grounding human rights are actually facts about both humans and many other species of animals. Accordingly, the most plausible account of human rights provides reason to be very skeptical of human supremacism or species hierarchy. In this context it is worth considering David Lynch’s 1980 film The Elephant Man, in which the disfigured main character, John Merrick – based on Joseph Merrick (1862–1890) – proclaims his powerful objection to being publicly humiliated and used merely as a source of amusement for others. Perhaps the most famous line in the film is Merrick’s plaintive cry, “I am not an animal. I am a human being.” I recall, as a young person watching the film for the first time, being moved to tears by this scene; but it takes on a new meaning in the context of the need to reject human supremacism. Kymlicka mentions Michael Rosen’s plausible account of dignity violation as humiliation, exemplified by being put on display in a circus.51 Merrick was treated like a circus animal. Here the point is that the key objection to his treatment should have been that humiliation of a sensitive creature is morally wrong. This would have the positive effect of applying not only to Merrick but also to circus animals. One can imagine revising

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the film script to replace “I am not animal. I am a human being” with a slightly longer plea from Merrick as follows: “I am a sensitive social creature. I feel pain and emotional distress. I suffer terribly when treated by all of you in this humiliating way.” Nothing in this revised plea depends on placing humans above animals in a moral hierarchy; on the contrary, it could be used by a defender of animal rights to help explain what is wrong with circuses. Kymlicka rightly wants to emphasize the “corporeal vulnerability” humans share with animals,52 but it does not follow that an account of human rights should fail to mention features, such as the capacity to form, revise, and pursue a conception of the good life, that do seem to distinguish many human animals from other species. While human supremacism should be rejected and the multiple continuities shared by human and non-human animals recognized, nonetheless characteristics like the capacity for autonomy (as it figures in Griffin’s trinist conception of normative agency: autonomy, liberty, and welfare) do help make the case for some human rights such as the right to freedom of expression, freedom of assembly and association, freedom of conscience, the right to political participation, and the right to basic education. To sum up, then, the best solution holds that some human rights are grounded in basic interests that human beings share with other sentient creatures, but other human rights are grounded in – and only make sense when they appeal to – agency interests that we do not share with non-human animals, interests that help to justify (human) civil rights like the right to free speech and (human) political rights like the right to vote and run for office. Again, this is not to deny the continuity between animals and humans in many of their morally significant characteristics, but it is to assert that some human characteristics are both morally significant and correctly understood as distinctive to human beings. It is worth pointing out that Kymlicka, although a proponent of the human supremacist objection, has himself defended both individual rights and group-differentiated ethnocultural rights by appealing to individual autonomy. In his celebrated defence of liberal multiculturalism, Kymlicka argues for protecting societal cultures because they

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provide individuals with meaningful options from which to choose. The argument is premised on the underlying value of autonomous individual choice as a precondition for leading a good life.53 This sort of reasoning fits quite well with Griffin’s appeal to autonomy as one of the three basic, highest-level human rights. I take this to be further support for a pluralist view of the grounds of human rights within which autonomy figures centrally. One aim of a satisfactory account of human rights – and a key aim of Griffin’s own view – is to help make sense of both the theory and practice of human rights, where the practice includes the human rights revolutions during the period from 1945 to the present. So Griffin emphasizes the appeal to dignity as a key element of the Universal Declaration of Human Rights54 in his account of normative agency as what he takes to be the best understanding of dignity. But Kymlicka objects to Griffin’s personhood or normative agency account precisely on the grounds that it runs counter to modern human rights practice. Consider that Griffin’s theory excludes human babies and the seriously mentally disabled from its purview because they lack the capacity to normatively evaluate competing plans of life.55 For Griffin, we have strong moral duties to these vulnerable members of our species; it is simply that those duties are not correlated with human rights because, on his view, such rights protect an individual’s capacities to reflect, evaluate, and act on a conception of their own good, but babies and the severely mentally disabled lack these capacities. However, Kymlicka correctly points to the real-world phenomena of the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities to show that human rights jurisprudence and activism includes within its conception of personhood those excluded by Griffin’s account. It is no part of current human rights practice to demand a test of normative agency or cognitive competence to determine inclusion as a human rights bearer. As far as human rights practice is concerned, then, persons include “all embodied and vulnerable human subjects, in all of their enormous diversity of linguistic and cognitive capacities” (and if such “corporeal humanism grounds human rights, its logic extends naturally to animals”).56

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The human supremacism objection correctly puts us on guard against the illegitimate privileging of Homo Sapiens that would allow us to run roughshod over non-human animal interests. It also points to the wisdom of focusing on features that ground human rights that we share with animals. Taking these ideas into account should pave the way for defences of both human and animal rights while recognizing that some features of human beings, such as the capacity for autonomy, may support rights only for human beings; still, this is compatible with a strong, rights-focused concern with the interests of animals. Conclusion Earlier I said that the normative agency conception is a variant of the orthodox picture of human rights in that it sees such rights as held by human beings simply in virtue of their being human. In light of the human supremacism objection, however, I should add that “simply in virtue of being human” is potentially misleading if it suggests that species membership is itself duty-generating. On the view I defend, it is normative agency, along with other morally important interests such as vulnerability and the capacity to experience pleasure and pain, that justify the rights of individual human beings. It remains important to talk about human rights, but this should in no way preclude the defence of animal rights, nor should it limit the grounds of human rights to normative agency alone. Notes 1 Griffin, On Human Rights, 48. 2 Ibid., 81. While Griffin calls his view the personhood account, it is nonetheless the protection of agency that constitutes the purpose of human rights. As he puts it at 258, “the defence of agency is what individual human rights are meant for.” Consequently, I will refer to the view under consideration as the normative agency account. 3 Griffin adds another ground of human rights, beyond personhood, that he labels “practicalities.” His point is to ensure a clear line limiting the practical

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requirements of human rights protections by appealing to “empirical information” about “human nature and human societies, prominently about the limits of human understanding and motivation” (Griffin, On Human Rights, 38). Ibid., 150, 33. Ibid., 33. Ibid., 47, 183, 226, 243. Ibid., 33. Ibid., 34, 101. Rawls, A Theory of Justice, 441–2. Ibid., 152. Rawls, Political Liberalism, 293. I avoid here the complicating factor that Rawls’s later work emphasizes political autonomy rather than moral autonomy in defending his principles of justice. Also, for present purposes, I pass over Rawls’s own minimalist account of human rights in The Law of Peoples. Griffin, On Human Rights, 151–2. Ibid., 226, 144–5, and 31. Consider two further sentences from Griffin: “Human rights grew up to protect what we see as constituting human dignity: the life, autonomy, and liberty of the individual” (ibid., 349). “Autonomy and liberty constitute the central values of what we think of as human dignity” (ibid., 327). Conly, Against Autonomy, 1. Ibid., 8, 9, 20–3. Ibid., 2. Griffin, On Human Rights, 149. Ibid. Ibid. Cf. ibid., 45. Ibid., 149. Ibid., 152–3. Ibid., 149. Conly, Against Autonomy, 9. Ibid. Ibid., 11. Ibid., 15. Sarah Conly, “When Freedom of Choice Doesn’t Matter,” 55, 43. Griffin, “Replies,” 211, emphasis in original. Griffin, On Human Rights, 35, 36. See also 51–6, 108. Vernon, Historical Redress, 26. Cf. Vernon, Friends, Citizens, Strangers, 92, 94. Ibid., 26, emphasis in original.

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33 Griffin, On Human Rights, 54. For the classic interest-based account of rights, see Raz, The Morality of Freedom, ch. 7. 34 Ibid., 55. 35 Ibid. 36 Ibid., 34. 37 Tasioulas, “Human Rights, Universality, and the Values of Personhood, 79– 100; Tasioulas, “Taking Rights out of Human Rights,” 14. 38 Tasioulas, “Taking Rights out of Human Rights,” 21, 26. 39 Ibid., 26. 40 Griffin, On Human Rights, 51. 41 Cf. ibid., 179–80. 42 Ibid., 52. 43 Kymlicka, “Human Rights without Human Supremacism.” 44 Ibid., Kymlicka shows that Waldron distinguishes persons, who possess dignity and value, from “things and animals,” and that such dignity implies that persons should not be treated like “dumb animals.” See Waldron, Dignity, Rank, and Rights, 12. See also Waldron, “Inhuman and Degrading Treatment,” 282. 45 Genesis, 1:27. 46 Griffin, On Human Rights, 152. 47 Kymlicka, “Human Rights without Human Supremacism,” 8, 16, 24n32. Kymlicka endorses approaches to grounding human rights that appeal to a range of features that humans share with non-human animals, including vulnerable subjectivity and capabilities (ibid., 5). 48 Bentham, An Introduction to the Principles of Morals and Legislation, 283. 49 Griffin, On Human Rights, 32. 50 Kymlicka, “Human Rights without Human Supremacism,” 5, 8, 13–14. 51 Ibid., 25n42. See Rosen, Dignity. 52 Ibid., 18. 53 Kymlicka, Liberalism, Community, and Culture, 12–13; Kymlicka, Multicultural Citizenship, 80–3; Kymlicka, Contemporary Political Philosophy, 339. 54 Universal Declaration of Human Rights, preamble. 55 Griffin, On Human Rights, 92. 56 Kymlicka, “Human Rights without Human Supremacism,” 24n32.

Chapter Five Cosmopolitan Regard in the Global Value Chain Kishanthi Parella

Professor Richard Vernon’s theory of cosmopolitan regard (cr ) rests upon two important predicate conditions for ethical duties among compatriots. First, we owe special obligations to our compatriots because we share unique risks from our mutual collaboration in the project of the state. Our creation, the state, can both protect and persecute us and we owe it to our compatriots to protect them from harm. cr obligations are justified because the state is a source of unique risks. Second, under cr , our obligations are not exclusive. We also owe obligations to outsiders in other countries when their own states fail, turn criminal or pose other forms of harm. We have an obligation to aid and, I assume, assist those aggrieved with their state projects. Our external obligations are owed here because the state is the source of welfare and it has failed some foreign population. Vernon’s theory of cr may not only serve as a foundation for duties among compatriots but can also provide an ethical foundation for special obligations in global value chains (gvc s). gvc s are particularly vulnerable to abusive conditions. Traditional corporate social responsibility does not go far enough to address these concerns, but cr may fill this gap. Nevertheless, in order to extend Vernon’s theory beyond the state, I need to challenge each of the predicate conditions for his theory that currently limit special obligations to compatriots that share in only one form of collective project: the state. Specifically, I challenge this statist view of cr by arguing that the state is neither the exclusive (a) source

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of welfare nor (b) source of unique risk. Instead, one particular nonstate actor increasingly takes on these characteristics: the transnational corporation (tnc ). The tnc shares these attributes of cr , begging the question whether collective projects other than the state, such as a tnc, can also give rise to special obligations. The first part of my comment explains why I think that a tnc qualifies its members for special obligations. The final part of my comment considers the implications of plural special obligations for cr . Source of Risk According to cr , we owe special obligations to our compatriots because we jointly participate in a common enterprise – our state – and this enterprise can put us at risk. This shared vulnerability in a collective enterprise serves as a foundation for special obligations between the members. My question is whether membership in similar collective projects can also give rise to similar special obligations between the members. A tnc is also an artificial entity that is created by its members to serve some purpose. Its members perform specific functions and receive a range of benefits from membership. Some tnc s also have strong brand personalities so that their employees identify with the company, such as Google. tnc s cultivate this loyalty by undertaking actions that reinforce a particular social image of itself and its employees.1 It also goes without saying that many tnc s are quite powerful, spanning continents and controlling a considerable quantity of global resources and wealth. This power makes them difficult to regulate, especially given the changes in the organization of global production. Previously, vertical integration of production occurred when a firm assumed the tasks associated with taking a product from concept to the end-user – including design, manufacturing, testing, packaging, and marketing. During the twentieth century, this form of production was challenged by an alternative model that largely externalizes manufacturing tasks (as well as an increasing array of functions) to outside firms (either domestically or internationally).2 Many industries have

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shifted to this outsourced model as household names divest their production facilities and increasingly rely on external suppliers. This fragmentation of production lead to global value chains for tncs that are spatially dispersed and involve a multitude of actors performing a range of tasks. This fragmentation set the stage for the governance gaps we witness today. Our headlines routinely report on transnational corporate misconduct, ranging from environmental contamination to human trafficking to sweatshops. According to the un Special Representative for Business and Human Rights John Ruggie, we witness these transgressions because of the “governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.”3 tnc operations pose significant risks to the workers in the value chains and the communities near production sites. Our normal defense to such threats is the state but national governments – home state and host state – have proven ineffective in regulating global value chains. Host states suffer from weak or non-existent regulatory capacity that prevents them from enforcing standards and ensuring compliance.4 Improving environmental and labour standards may not be prioritized by host state regulators fear that such regulations could compromise the achievement of economic objectives.5 Home states similarly encounter challenges with regulating the foreign activities of their corporations. Jurisdictional limitations, information asymmetries, coordination challenges, and capacity constraints limit the effectiveness of extra-territorial regulation. The result is that we have an entity that poses significant risks to individuals around the world but is often not effectively controlled by state actors. Would these conditions trigger special obligations under cr ? Some may respond that the fact of risk is not the necessary pre-requisite for special obligations. Individuals participate in a variety of associations that increase their vulnerability to harm: dating or marital relationships (or any family association), religious organizations,

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employment arrangements, and recreational clubs, among others. Each of these associations rearrange our lives so that we are brought within the spheres of influence of others and bonds (social, financial, etc.) keep us there. The conditions for exploitation are set, whether the risk materializes or not. But under cr , the risk that a state poses is different, and it is that difference that qualifies special obligations among members exposed to those risks. Vernon identifies several characteristics of state-based membership that expose citizens to unique risks: scale of harm, direct application of power to individuals and constraint on self-help, juridical surrender of self-sufficiency, exposure to a closer set of controls and greater demands, and limited opportunity to escape the preference of majorities.6 A tnc may not pose these same risks. They do not ask us to lay down our arms in exchange for collective security through the tnc , although in some locations private security forces hired by a tnc provide local security as opposed to local police.7 They do not “command administrative resources, have the authority to mobilize mass action, [or] enjoy territorial control that is sanctioned by international norms and sovereignty.”8 But they control those that do. A state may uniquely possess the attributes that Vernon describes but tnc s can and do coopt those capabilities for their own benefits. In Kiobel v. Royal Dutch Petroleum Co., Shell’s subsidiary was accused of complicity in torture, extra-judicial killings, and other violations against those that opposed oil extraction in the Ogoni region of Nigeria.9 It was the Nigerian government that detained the victims, held them incommunicado in military custody, tried them by a special court, and executed them. But, according to the plaintiffs, they did not do it without Shell’s help. Shell provided transport to Nigerian troops, fed and paid them, and permitted its property to be used as staging areas for attacks against the Ogoni.10 Similarly, former Canadian oil giant, Talisman Energy, was accused of aiding and abetting and conspiring with the Sudanese government to kill, torture, displace, and ethnically cleanse populations near their oil concessions in Sudan.11

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Vernon writes that states also influence the nature of individual resistance to change, especially from global economic forces. But tnc s influence that state influence. A complicated set of investment treaty relations between developed and developing economies constrain the domestic policymaking of the latter. Bilateral investment treaties (bit s) contain a variety of investor protections that are triggered when an investor, often from a developed economy, invests in a developing economy. These protections allow foreign investors to bring claims for compensation against host states before international arbitral tribunals for violations of rights contained in bilateral or multilateral investment treaties. Such claims often involve alleged expropriation or regulatory takings, denials of justice, discriminatory treatment or other actions resulting from host state domestic policymaking relating to the welfare of its citizenry. These protections can and do inhibit the ability of developing to pursue economic, social, and environmental programs that the state government deems beneficial for its population.12 For example, in the wake of the Argentine financial crisis in 2000, the Argentine government altered the terms of its privatization contracts with foreign investors. These investors were not happy about the changes and took Argentina to international arbitration, claiming various violations of the applicable bilateral investment treaties. A number of people worry that this exposure to liability has a chilling effect on the domestic policymaking by developing economies.13 As a result, the capacity of the state to act for its citizens is significantly influenced by the actions and preferences of tnc s. None of these examples challenge Vernon’s characterization of the state. It was the machinery of the state that attacked populations in Sudan and Nigeria. It is also state policy that insulates or exacerbates individual exposure to global economic forces. But it is worth exploring whether these state actions are motivated, aided, encouraged, or just influenced by tnc s. If so, then tnc s have adopted many of the state attributes that Vernon lists but without actually becoming a state. They simply have state resources at their disposal to employ in ways that Vernon fears. In such situations, perhaps the state’s unique risks

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are not limited to the state but also to those entities that can employ that state machinery for their own purposes. Source of Welfare According to Vernon’s Iteration Proviso (ip ), we can only defend our special obligations to our compatriots if outsiders are able to distribute similar special concern amongst themselves and we do not impede outsiders in seeking the same advantages that we strive for ourselves.14 If the first condition fails, then the legitimacy of our own risky project of the state, along with its attendant special obligations, is placed in jeopardy. To set it right, we should also aid others when their states turn criminal or fail. As Vernon admits, his approach is based on a state-based division of welfare. The state is the ultimate source of the social goods we associate with a functional society. When the state fails to fulfill these roles and turns from benefactor to perpetrator, I assume that cr advises us to assist outsiders with the ultimate goal that their state can once again perform what we expect of a state. Otherwise, we cannot legitimate our own return to our exclusive state projects. But what if the roles we expect of states are not performed by states but instead by transnational corporations? Aside from philanthropic campaigns to build schools or tackle disease, tnc s are fulfilling quasilegislative and enforcement roles in the world. First, the rule of law is failing in many states. International legal norms – encapsulated within international human rights treaties – are not reflected within the local laws. Even if present, they are seldom enforced in a meaningful way. Alliances between media and ngo s have revealed the consequences of such “less regulated spaces” and mobilized civil society demands for better practices by the transnational business sector. The result was the proliferation of private codes of conduct (CoCs) developed by companies – individually or collectively, with or without consultation of other stakeholders –regarding what happens in their value chains. Now hundreds of global brands and retailers boast corporate codes of conduct that are meant to establish social and environmental standards for

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their suppliers. For example, hp ’s Supplier Social & Environmental Responsibility Agreement states that suppliers are “responsible for identifying any areas of its operations that do not conform to hp ’s Supplier Code of Conduct and hp ’s General Specification for the Environment,” as well as “implementing and monitoring improvement programs designed to achieve” these standards.15 The agreement also gives hp the right to progress reports and the right to records for verification of the information in the supplier’s reports. This example of a company level code of conduct also reflects broader consensus on applicable standards. The hp Code of Conduct is based on the Electronic Industry Code of Conduct (eicc ) that establishes “standards to ensure that working conditions in the electronics industry supply chain are safe, that workers are treated with respect and dignity, and that business operations are environmentally responsible.”16 The eicc , in turn, reflects international norms embodied in treaties and guidelines: “[The] standards set out in the Code of Conduct reference international norms and standards including the Universal Declaration of Human Rights, ilo International Labor Standards, oecd Guidelines for Multinational Enterprises, iso and sa standards, and many more.”17 Similarly, the Ethical Trading Initiative (eti ) “is an alliance of uk based companies, ngo s and trade union organizations working to promote and improve the implementation of corporate Codes of Practice which cover supply chain working conditions.”18 The eti Base Code is based on national and international labour standards and addresses labour rights issues such as forced labour, freedom of association, and child labour.19 The eti requires that member companies adopt or incorporate the eti Base Code into their own corporate codes.20 Of course, having a CoC and enforcing a CoC are two different things. Continued media exposure of tnc practices lead to the development of monitoring and certification schemes to ensure that tnc actors abide by the company’s CoC. Internal or external company monitors visit factories supplying tnc products to ensure that production practices conform to the CoC. A number of brand companies now display their monitoring efforts and results on their websites.

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Some companies also desired certifications by third party organizations and would therefore submit their operations to inspection. Codes of conduct, monitoring practices, and certification schemes are examples of private institutional development by the transnational business sector. tnc s, often in cooperation with other stakeholders (local and international ngo s, local government, igo s) perform standard-setting functions through their CoCs. These CoCs may provide the only effective rules governing labour or the environment within certain outposts of the gvc . In addition to standard-setting, tnc s are also undertaking dispute resolution through the establishment of company-level grievance mechanisms. These mechanisms are intended to address conflicts within a gvc , such as labour disputes between factory workers or farm labourers and local management. They also provide remedies to disputes between a tnc and local community members. These grievance mechanisms are not intended to replace judicial mechanisms within the state. However, the reality is that these grievance mechanisms do arise when local courts are inaccessible or ineffective for a variety of reasons. Both examples of private institutional development illustrate ways in which states are failing to fulfill key roles while tnc s, for better or worse, are stepping into these roles. These situations pose two questions for cr . First, in a hypothetical where outsiders can only receive the majority of social goods from a non-state actor, such as the tnc , what is the nature of our obligation to aid? Should we exclusively focus on state capacity or should we also focus on bolstering the ability of tncs to deliver these goods effectively? What is the nature of our obligation if it is directed toward a non-state actor rather than a state, especially if the former is based in our own state? Second, do we need to return to a state-based distribution of welfare for the ip to hold? If an ideal corporation provided key social goods (standard-setting, dispute resolution, economic development, education, health care, protection and security) as well as we could expect from our own state project, is that good enough to satisfy the ip ? Are our own special obligations justified in this scenario where outsiders

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receive the benefits that we desire for them from a source other than the state? What is it that fundamentally drives the ip : (a) the means of delivering the goods or (b) the goods themselves? If it is the means that is paramount, then the priority is establishing an international order of functioning states that can deliver the goods we expect of them. If that is the case, then the ip would not be satisfied under the hypothetical just discussed. If it is the benefits that matter, then the priority is on outcomes and whether outsiders receive the social goods needed – regardless of the nature of the source (state or non-state based). In this situation, the hypothetical would satisfy the ip . I am not sure if cr is driven by the former. If it is, I am confused about the reasons. It cannot be based on an expectation that the state is the exclusive source of goods so that the state (and the goods that we expect of it) go hand in hand. As I just outlined above, you can have one without the other. Admittedly, the examples provided relate to discrete but significant functions. I only provided a hypothetical of a tnc that provides the full spectrum of social goods – but we may not be far off from that day. If that day comes and a tnc delivers on social goods just as well or better than the state predecessor, should that be sufficient? Or should we press for a state to deliver those goods? If so, why? If we are unsatisfied with this situation, then the ip is not primarily about establishing a baseline where outsiders receive the benefits of a state project but instead about establishing the state project itself, albeit one that can deliver the benefits expected. So what is special about the state? From Corporate Social Responsibility to Cosmopolitan Regard For the reasons above, I think it is important to consider whether cr can apply to collective projects other than the state and include tnc s. It is no secret that there are in-groups and out-groups within global value chains and that there is disparity in treatment between these groups. Factory workers, farm labourers, and local inhabitants are treated very differently by a tnc depending on where they are located

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and which link in the global supply chain they occupy. There are several reasons for this disparity in treatment and a tnc ’s policies are only part of the explanation. National laws concerning labour and the environment vary between countries. These differences partially explain why some tnc s chose to relocate operations within countries where the laws may be non-existent, lax, or seldom enforced. We see the consequences of these differences in the headlines that document instances of sweatshop practices and other human rights abuses. Some tnc s defend their practices by claiming that they are still following the law – the law of the host state in which they operate. This explanation did not satisfy many consumers or ngo s. The public demand for greater corporate social responsibility (csr ) can be seen as a demand for performance better than what the law requires. csr was that something more but its contours are ill-defined and contested. For some, it is corporate philanthropy, such as monetary donations to worthy causes. For others, it is engaging in community development or some other active form of service. Increasingly, it also involves the mitigation of the adverse effects of corporate conduct on the surrounding environment, including workers and communities. cr could offer a productive framework to identify the “something more” that tnc s should provide to those in their value chains. I don’t intend to provide a complete account of those obligations. Instead, I want to identify some implications of tnc -based special obligations. First, a cr focus challenges the boundary of the firm. When we ask ourselves if we have a duty to outsiders separate from our duty to insiders, we assume the existence of a boundary of some sort. In traditional cr , those boundaries are national borders. We share special obligations with those within our own borders but under ip we also have external obligations to outsiders under certain conditions. In the tnc context, firms treat individuals differently depending on their proximity within the value chain. This behaviour assumes a boundary but that boundary is more difficult to define. As firms fragmented, they ordered themselves through clusters of contracts. Tasks previously performed within the firm are externalized to third parties – inside and outside of national borders – through contracts. In

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this re-organization, where is the boundary of the firm? Let’s pretend that a tnc , Amco, contracts with two sets of suppliers: A and B. A is located in the same country as Amco’s headquarters. B is located overseas. If Amco treats A and its workers better than B and its workers, what justifies this difference? Both A and B are outside the boundary of the firm: they are both outsiders. So what justifies the superior treatment of one over the other? Global value chains also have a core and periphery with a corresponding scale of obligations. Some may argue that differential treatment is justified depending on how far A and B are removed from Amco on the value chain. Party A may be a first-tier supplier to Amco and therefore in direct contractual relations. By contrast, Party B may be a sub-contractor (or even a sub-sub-contractor) of Party A or another first-tier supplier. Under these conditions, Amco cannot be expected to treat Party B just as well. But what if both parties were first-tier suppliers, equally equidistant to Amco in functional proximity (but not geographic proximity)? What reasons could Amco have for providing better treatment to Party A but withholding it from Party B? In other words, if some form of corporate ethical obligation is going to flow from the tnc outward to external parties, doesn’t it have to flow the entire length of the value chain? What justifies its termination at some invisible boundary that does not in fact exist? One unsettling explanation arises from the likely possibility that tnc-based cr obligations do not just parallel state-based cr obligations; instead, they also intersect. The reason that Amco’s ethical obligations may stop at Party A and not extend to Party B is because of the state-based special obligations shared between Amco and Party A. Someone may reply that this differential treatment results from the differences in national laws between Amco/Party A’s state and Party B’s state. I don’t think this is a satisfactory explanation because national laws reflect societal beliefs. True, Amco may treat Party A better because of a particular national law but that national law is based on some form of associative preference. The national law may have given rise to Amco’s treatment but beliefs in state-based special obligations gave rise to the national law.

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Second, this possibility raises the question of whether we can, or should only have, one exclusive set of special obligations. Otherwise, are we in a situation of competition between these different set of obligations? In traditional state-based cr , we are in an ethical universe of state units with no risk of competition because we each belong to a state unit with its corresponding set of special obligations. External duties to others are organized in concentric circles so that they do not endanger our obligations to those within our own state. There is minimal risk of overlap, competition and, consequently, subversion. These risks change if we allow for the possibility that special obligations may arise from collective projects other than the state (see the first and second sections above) that can also pose similar forms of unique risks identified by Vernon. To clarify, this is not the multiplication of the same type of special obligation; that already exists under cr because every state’s citizens would be bound together under their own bonds of special obligations. Instead, now we have at least two types of special obligations (state-based and tnc -based) that can multiply according to the number of variations. It is the plurality in the types of special obligations that may be the problem. If we consider the possibility that an individual may have two types of special obligations, which set takes priority if they are in conflict? This may be an unpleasant, even wasteful, exercise to consider but plurality of obligations may better describe the reality of our world. cr does not deny that we have plural identities (daughter, sister, wife, British citizen, American resident, Mormon religion, engineer, Google employee, etc.). It also does not deny that these identities give rise to obligations. It only states that we may have particular, special obligations to our compatriots arising from the unique risks that our state poses to us. However, I do think that some of these plural identities may also implicate Vernon’s unique risks and therefore give rise to analogous special obligations. We may then need to contend with these issues of competition and prioritization. Finally, competitive special obligations do not only arise when there is more than one collective project – state or tnc – that qualifies. Instead, such competition can also arise within traditional state-based cr

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depending on who you are. Part of the reason that I find state-based cr troubling is because I write this while living in a country that is not, technically, mine. My citizenship is Canadian but my residence is American (and has been for years). In which state project do I partake? Vernon’s ordering of special obligations may be straightforward for some but difficult for me. And I suspect that I am not alone. We can call it globalization or necessity or instability but, whatever it is, it causes us to live in a world of border-crossing migrants. Canadians, of all people, should know this. Plurality is the default condition. A moral universe that is still based on state identities does not seem to capture this plurality. Conclusion Vernon’s theory of cosmopolitan regard could provide a basis for more robust ethical obligations between actors within global value chains. In order to apply cr to this new context, however, I needed to consider the predicate conditions for cr theory and whether these conditions could apply to collective projects beyond the state. In this chapter, I hope to show these conditions are not limited only to states and that the conditions for cr also exist in global value chains. It is a separate project to consider what types of special obligations may apply in these global value chains. Who has special obligations and to which parties? What is the nature of these special obligations? Are all actors simultaneously rights-holders and duty-bearers? If not, what justifies these categories? These questions and related issues are part of the research agenda that emerges from applying cr beyond the state. Notes 1 Frynas, “The False Developmental Promise.” 2 Gilson et al., “Contracting for Innovation.” 3 un Secretary-General’s Special Representative for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises.

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4 Affolder, “The Private Life of Environmental Treaties,” 513–14; Cragg, “Home Is Where the Halt Is,” 735, 752. 5 Abbott and Snidal, “Strengthening International Regulation.” 6 Vernon, Cosmopolitan Regard, 52–5. 7 An infamous example of failed private security forces involved Canadian goldmining giant, Barrick Gold, in Papua New Guinea. Barrick employed private security forces to guard its mines in the area from attacks from local inhabitants. Some of these private security forces engaged in the assault of women in the local area. Human Rights Watch investigated these violations and reported, “Papua New Guinea’s government is hobbled by corruption, poverty, and remarkably low institutional capacity. Instead of overseeing Barrick’s activities, it effectively left the company to do the job itself ” (Albin-Lackey, “Without Rules”). 8 Vernon, Cosmopolitan Regard, 52. 9 133 S.Ct. 1659 (2013). 10 Ibid. 11 Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F .3d 244, 249-51 (2nd Cir. 2009). 12 See Ricardo Patino (Minister of Foreign Affairs of Ecuador), “Transnational Misconduct Must End,” Huffpost, 24 October 2014. 13 Public Citizen, “Case Studies: Investor-State Attacks on Public Interest Policies,” 2014, http://www.citizen.org/documents/egregious-investor-stateattacks-case-studies.pdf. 14 Vernon, Cosmopolitan Regard, 114. 15 hp Supplier Social & Environmental Responsibility Agreement, 22 October 2008. 16 Hewlett-Packard, hp Electronic Industry Code of Conduct, 10 November 2014, https://h20195.www2.hp.com/v2/getpdf.aspx/c04797684. 17 eicc , Code of Conduct, http://www.eiccoalition.org/standards/code-ofconduct. 18 Caroline Rees and David Vermijs, Mapping Grievance Mechanisms in the Business and Human Rights Arena, Corporate Social Responsibility Report 28, 2008, 42. 19 Ibid. 20 Ibid.

CHAPTER six Justice, Democracy, and the Legitimacy of the International Criminal Court Kirsten J. Fisher Introduction International criminal law (icl ) is considered by many a bright light in a global fight to end impunity for perpetrators of pervasive and purposeful mass political violence. It developed as a response to atrocities that “shock the conscience of humanity” and brought individual action within the scope of concern of international law.1 The International Criminal Court (the icc or the court) is the principal international institution of icl . The court is both a working international institution capable of prosecuting some of the worst atrocities committed by individuals against their fellow human beings and also an important symbol of international consensus on the denial of impunity for individuals who commit such crimes. The global symbolic value of the court exists, some argue, despite the fact that not all states are members of the Rome Statute, the founding treaty of the court.2 In fact, as the icc matures as an institution, and problems that might have been dismissed as growing pains of a new institution (very few trials in its first years, for example) persist, supporters of the court are pointing more and more to its symbolic significance.3 However, if the real power of the court is grounded both in international political support and the perception that it transcends international and national politics to deny impunity for crimes that illustrate a specific kind of evil, then the court needs to actively be working towards ensuring that it is seen as globally representative and as objectively applying its laws.4

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This chapter addresses a particularly tricky question at the intersection of global political theory, global ethics, and international politics: whether an international institution can or should be democratic and what that might mean, especially in terms of what unit is the most appropriate voice at the international level – individual citizen or state leader. To do so, it explores the relationship between the icc and Africa and how this relationship affects the legitimacy of the court. Specifically, it considers the challenges facing the legitimacy (real and perceived) of the icc in light of complaints from and withdrawal (and subsequent reversal of withdrawal) of some African states. The true reach and the symbolic value of the court as an instrument of objective denial of impunity globally is threatened significantly as states that were once the court’s early and eager supporters make charges of Western imperialism and (threaten to) withdraw their support over the court’s denial of head-of-state immunity for leaders of states accused of atrocity crimes committed against their own citizens. This chapter first explores the history of international criminal law and its relationship with the African continent. It then considers the court’s legitimacy as an arbiter of global just behaviour. In the third section, the chapter examines the current concerns voiced by some African states and their threats and actions. Ultimately, this chapter argues that the icc must show proper respect to the populations of its member states, because they are part of the icc and within its jurisdiction. Given that African states are still those most affected by the work of the court, this means that citizen of African states deserve proper respect and attention. This does not mean that the icc should defer to the demands of African state leaders, especially since many of them are only questionably representative of their populations and, at least in the case of head-of-state immunity, complying with demands would likely result in reinstating the very type of injustice that the icc was created to combat. It does mean, however, that proper relationship between the court and the citizens of member states means engaging in dialogue and taking concerns regarding global justice and injustices within the global system seriously.

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The History of International Criminal Law and Its Relationship with States Less Powerful Prior to the end of the Second World War, only states were subjects of international law and international law was concerned only with the relationships between sovereign states, with laws reflecting multilateral conventions or customs that regulated interactions between states and protected good relationships. This is true despite an unsuccessful attempt, through the Treaty of Versailles, to prosecute “the defeated German emperor ‘for a supreme offence against international morality and the sanctity of treaties’” at the end of the First World War.5 Following some thinking of an international criminal court in the interwar period, events of the Second World War inspired new zeal for an international tribunal that would hold individuals accountable. The Nuremberg trials, presided over by judges from the victorious Allied powers after the war, set a remarkable precedent for the direction that international law was, in theory, to follow in the second half of the twentieth century. A dramatic shift in the conceptualization and practice of international law seemed necessary to adapt to the apparent demand to respond to shocking actions committed by governments against their own citizens and the ordinary citizens of other states. The move to hold individuals criminally accountable under icl for international crimes was a radical departure from centuries of state-centric conduct and an important move in the denial of impunity for atrocious crimes. In recent decades this autonomous system of law has aggressively developed to deal with individual criminal responsibility for the most heinous of crimes. But the development and application of the international criminal system have been mired in criticism and concern. The icc can be seen as step in the right direction at the same time as a reflection of the deeply flawed and unequal international political system not dissimilar to its predecessors despite very different legal foundations. The icc is playing an increasingly significant role in global politics and issues of global security in an inter-national, statist system.

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It is a system in which there is unequal power held by different states, with some states being able to exert far more influence than others to shape international norms and behaviour to their own favour. The icc is an institution created out of this system, and reflective of it. The Rome Statute was negotiated by states.6 At the same time, its aim is, in some ways, to undermine the unequal power and unique political privilege of powerful states over others within the system and state leaders over their citizens. It occupies a space in which it was founded and is supported by states, but these states willingly give up some of their own sovereignty for this institution to have jurisdiction over them under restrictive conditions. Following up on some earlier thought of an international criminal court, as mentioned above, the icc began as an idea considered and supported by the un General Assembly in 1991.7 From 1995 to 1998, the un General Assembly convened two committees to work towards the establishment of an international criminal court and draft a founding statute.8 Despite what some powerful states desired, with the aim that the court not “encroach upon their historic prerogatives,” it was created as an entity separate from the United Nations and independent of Security Council (unsc ) oversight.9 The United States, originally a supporter of the concept of an international criminal court, wanted ultimate control over the court to reside with the unsc , of which the US is a permanent member.10 When such control was not forthcoming in negotiations between states, the US began to oppose the court. The icc , unlike the United Nations, which was created when African states were still colonized and then bequeathed to them, was created at the turn of the twenty-first century when previously colonized states could fully participate in the negotiations that determined the scope and activities of the institution. Some such states, including some in Africa, were some of the first to support the court. It was Senegal, in February 1999, that was the first state to ratify the Rome Statute. And, in fact, seventeen African states were among the first sixty to ratify the Rome Statute “thus contributing to the achievement

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of the threshold necessary for the statute to become effective.”11 More than two thirds of the members of the African Union (AU ) are icc member states. It was also African states that first engaged the court, with Uganda, the Democratic Republic of the Congo (drc ), and the Central African Republic (car ) referring crimes committed within their own borders. In the first fifteen years of the court’s existence, the only cases to come before the court were from the African continent, and the majority of icc investigations in Africa have arisen from requests or grants of authority by governments of the countries where the crimes were committed: car , Côte d’Ivoire, drc , Kenya, Mali, and Uganda. The unsc referred two others: Darfur and Libya.12 The fact that most of the situations that have been investigated by the icc were self-referrals alone has led some to argue that “the court was deemed, by Africans themselves, a legitimate tool of justice.”13 There are of course, a variety of explanations for this engagement of African states with the court. Such engagement cannot simply be explained by faith in the court and its system. The court, naturally, as an international institution, was also viewed as a tool to be used by state leaders in their fight against adversaries in conflict and as a political tool to signal certain values and placate citizens. As time wore on and the court was not living up to some expectations or some leaders decided it was not as effective a tool as they might have hoped or they found it politically useful to criticize the court, the icc faced growing backlash from some African leaders. It was argued that the court targeted Africa. Some African leaders and commentators also had a problem with charges laid against sitting heads of state, such as Sudanese President Omar al-Bashir in 2009 and 2010 and Kenyan Uhuru Kenyatta and William Ruto in 2011. At the time, Kenyatta was Deputy Prime Minister and Minister of Finance of Kenya while Ruto was Kenya’s Minister of Higher Education, Science, and Technology; in 2013, Kenyatta was elected President of Kenya and Ruto became Deputy President of the country. In 2016 and early 2017, the strained relationship between the icc and Africa, especially over the arrest warrant issued for Bashir, reached its highest points of tension

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when South Africa, Burundi, and Gambia announced that they would each withdraw from the court, and the African Union adopted an “icc  withdrawal strategy.” The real effect of these announcements and posturing was actually quite minor, despite the belief that it was a devastating turning point for the court. This is partly because during the mandatory one-year period between the formal notice to withdraw and the actual withdrawal from the court’s jurisdiction South Africa and the Gambia reversed their decisions to withdraw and the non-binding au strategy had no bite. South Africa’s High Court judged the government’s decision to withdraw from the icc unconstitutional and the state formally withdrew its notification of withdrawal in March 2017. Newly elected Gambian President Adama Barrow, who “strongly campaigned on remaining in the icc ”14 reversed the decision to withdraw made by his country’s former leader Yahya Jammeh who was himself “accused of leading a government that tortured and killed opponents during his more than 22 years in power.”15 If the au “icc withdrawal strategy,” a push for a collective withdrawal by a large group of African states if African heads of state are not granted immunity for as long as they remain in office,16 had actually been implemented, it might have been catastrophic for the court. However, it seemed not to reflect what many African countries wanted; and “much of its rhetoric is vague and unclear.”17 Nevertheless, the current relationship between the continent and the court, while seemingly less uncertain on the surface, still reflects suspicion and displeasure. Looking at this relationship allows us to explore the interesting question of what state support, especially that of the “less powerful” states, means in regards to legitimacy of international institutions. It also allows us to consider the right relationship between the international institution, state leaders as representatives of the state’s citizens, and the citizens themselves. As will be discussed in the next section, the icc ’s legitimacy that was seemingly positively underpinned by African support and cases was negatively affected as scepticism grew. Because of the continent’s early support of the court and its role as the provider of cases, the court’s relationship with this continent, like no other, was and is significant to its legitimacy as an

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international institution and a just arbiter of global behaviour. While the immediate effect of the threats of withdrawal were not seen, there is now an underlay of tension, signalled most fervently at that moment in history, that must be addressed. Addressing the concerns voiced during the period of heightened African dissatisfaction may allow the court to avoid serious damage in the future. International Criminal Law and Questions of Legitimacy As I have discussed elsewhere, legitimacy refers to both the normative claim that the moral and legal foundation of the system is just and the perceived legitimacy of the system, the popular acceptance of a governing system. Bias and selectivity reflected in the operations of the icc affect both the real and perceived legitimacy of icl. Arguably, the court can be, and is, viewed by some as simply another expression of a profoundly undemocratic international order and an instrument for power politics.18 As I have argued elsewhere, its lack of capacity to independently decide to investigate all crimes that might fall within its subject matter jurisdiction globally and when the court seemingly indicts only some suspected perpetrators from a conflict to the exclusion of indicting other suspected perpetrators, it opens itself to charges of subjectivity and partiality.19 Yet, for law to have legitimate moral standing, it must be an impartial arbiter of behaviour; and for it to have moral and practical authority and influence, it must be perceived to be the objective application of promulgated rules. In recent years, there has been a growing concern among some of the court’s earliest and strongest supporters that it is partial and an instrument of the world’s powerful actors. Whether this is true or not (and, as will be shown, there is truth to the charge), even the perception that it is is significant and actually erodes the real moral legitimacy of the court as supporters, acting on and promoting this perception, begin to push away and retract their support. Historically, there are two types of criticisms made against icl . The first concerns authority and deals with the legal and moral basis for the judicial institution’s existence and to prosecute those it deems in

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violation of promulgated criminal law. The second type questions the objectivity and justness of the legal structure as a legitimate system of law. The two are intertwined. This is especially the case in regard to the concern of Western imperialism and the unjust unequal application of icl globally increasingly voiced by some of those interested in the relationship between the icc and the African continent. Legitimacy in the context of this chapter, as mentioned, is not based on only the legal system’s accordance with particular just foundations and principles but also the perception of legitimacy by both the international and the local populations. Perceived legitimacy is not “whether or not a particular criminal justice approach can be justified as legitimate on a theoretical level [but] … whether or not various local and international communities are likely, as a practical matter, to ‘buy in’ to the approach and treat the activities of the institutions involved as legitimate.”20 That a criminal justice system is deemed legitimate by those under its jurisdiction is imperative to its purposes of being expressively significant.21 It must be seen to exist as a legitimate authority over those it has jurisdiction and it must be seen to administer the law objectively, fairly applying the law to all subjects within its jurisdiction. icl has, over a relatively short existence, faced numerous challenges to its legitimate existence and its ability to pursue “justice” in a just and objective manner. Challenges that were once touted as a result of growing pains become less convincingly dismissed as the enterprise of icl is being regarded more and more as a political tool and an instrument to be used or not as the world’s more powerful states see fit. Despite icl having received growing recognition as a system of law that exists under legitimate authority, it is the subject of many debates: questioning its compatibility with pursuits of peace in situations of ongoing conflict and its ability to complement national pursuits of justice22; and the limits of objectivity due to political considerations. And yet, this concern is not the most fervent voiced by those in Africa currently. While the peace vs justice debate continues,23 the issues that were of most pressing concern to African leaders and led to unprecedented measures to voice their discontent, as mentioned in the

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preceding section, were the court’s narrow focus on Africa and its refusal to listen to concerns regarding head-of-state immunity (the latter of which arguably hinders some African states as they conduct international and regional politics). The perception that the icc is not responsive to the concerns of the continent from which most of its investigations and trials originate reasonably threatens the reputation of the icc as a just international institution. Morally, a just legal system must be impartial; and an international legal system must be, and must be seen to be, globally impartial. Practically, the icc might have difficulty recovering from global divisions if widespread distrust were to take root, especially if they were geographically concentrated in Africa or elsewhere. Such distrust had, at a time, threatened to wreak havoc and is still present but has not become overwhelmingly widespread in Africa. Nevertheless, attention must be paid to resolving concerns, for both moral and practical reasons. This is important both because some concerns are valid, such as the international imbalance of power over the court,24 and because the dismissal of growing dissatisfaction of the court in Africa (even if warranted), if done in a disrespectful manner, would be problematic. It is essential that a tricky balance be struck between objective justice that does not bend to the powerful (either powerful states within the international system or powerful individuals within a single state) and respect for political and practical realities the make up the system on which international relations and the court itself rely. This section now turns to briefly covering the history of the criticism of partiality levelled against icl and then, in the next section, using contemporary cases to demonstrate problems of partiality, this chapter explores the criticisms of some African states against the icc . Certain growing pains can be expected of any new enterprise or institution, but icl has come under significant and persistent attack for privileging some international actors over others – specifically more powerful international actors. The post-Second World War tribunals meant to prosecute the worst perpetrators of atrocities committed during the war were the objects of hope for the ushering in of a new era of the prevention of impunity, as well as the objects of great criticism.

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Problems of authority as well as selectivity hampered the legitimacy of these original tribunals. Before the tribunals had opened their first indictments, the moral standing of the courts as legitimate legal instruments was impaired. Preceding the establishment of the United Nations, these tribunals were established by the Allied victors and were designed to be presided over by citizens of Allied countries. Both the Nuremberg and Tokyo tribunals were criticized because the judges were appointed by victor nations and, therefore, it was argued, could not be impartial. Furthermore, the fact that the trials were restricted to punishing only European Axis war criminals set the Nuremberg trials up for criticism. The London Charter actually restricted the trial to “punishment of the major war criminals of the European Axis countries,”25 naturally fuelling concerns of legitimacy that arise when trials are established specifically with particular agendas. From the onset, the political biases of victorious parties to the conflict and powerful actors in the international community influenced the decision-making of the courts to exclude possible bad acts committed by actors other than those these parties wished to punish. Even one of the judges on the Tokyo Tribunal panel, Indian Justice Radhabinod Pal, questioned the legitimacy of the tribunal itself. He doubted the right of the victors to pass judgment on the vanquished, especially when the victors were likely guilty of crimes of their own. He wrote: “It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more a political than a legal affair, an essentially political objective having thus been cloaked by a juridical appearance.”26 Naturally, Pal’s words speak not only to the post-Second World War era tribunals, but to all subsequent pursuits of post-atrocity justice, and traces of the same bias for the victorious and powerful can be found in modern incarnations of international courts. Almost half a century later, international criminal tribunals for the former Yugoslavia and Rwanda (icty and ictr ) were established not by victorious parties to the specific conflicts they were to preside over but by the United Nations Security Council (unsc ). Both tribunals, then, as bodies of the un , possess international authority. However, since the unsc has the limited mandate to maintain or restore

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international peace and security and its composition includes five permanent members, each of which bears considerable global power and particular interests, its decisions can conceivably be seen to reflect the strategic interests and political motivations of the global elite. This is an issue that takes on a different nature in regard to African states in the second decade of the twenty-first century, when twenty-five years later the issue is not whether the unsc has the authority to become involved in post-atrocity accountability but whether its involvement should better reflect neutrality and objectivity. When the icty and ictr were established in the early 1990s, the unsc was criticized for overstepping its Chapter 7 authority in order to create them. It was seen at the time that the unsc “came to demonstrate an extraordinarily broad interpretation of its responsibility to maintain international peace and security” by establishing these courts.27 The tribunals faced charges of politicization that insinuated they lacked grounding in genuine international authority. Also, in creating the tribunals the unsc was criticized for selectivity in regard to siding with particular parties to conflict and applying icl to coincide with its conception of right. The operations of the tribunals seemed to reflect similar partiality. While the mandate of the  icty does not explicitly direct the tribunal to prosecute or exclude any particular actors, fuelling claims of politicization and selective prosecution, the chief prosecutor decided only to prosecute certain participants in the conflict, even though, arguably, there were other serious violations committed within the temporal jurisdiction. Some argued that particular North Atlantic Treaty Organization (nato ) leaders should also be investigated for violations of international law.28 Although there was an inquiry into the nato bombing campaign, the final report of the chief prosecutor determined that “if one accepts the figures in this compilation of approximately 495 civilians killed and 820 civilians wounded in documented instances, there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity.”29 Whether or not the analysis was conducted adequately and the right decision was reached, justice is not seen to be done by many because the tribunal was financially supported primarily by nato members. Perceptions of illegitimacy and political agendas,

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therefore, arose from demonstrations of a lack of political support and will necessary to truly adjudicate all major crimes committed as part of the conflicts and because the creation of these tribunals followed a lack of international interest for ending the atrocities as the conflicts ensued but were created and controlled by the same international actors who would not or could not mobilize to protect the victims they then aimed to represent. One of the justifications for icl is that international applications of law can be more objective in situations where it would be difficult for local administers of law to be.30 However, for this justification to hold moral weight it must be true that the international system applies the laws objectively. The icc , a fundamentally different court from the icty or ictr , faces the same criticism of politics in an unjust global system. Despite the court presenting its work as outside of the political realm,31 the court is restricted, because it relies on states as principle actors, to reflecting the interests and politics of states and their leaders. The icc , unlike the tribunals, is a court independent of the un although its special relationship with the unsc is becoming increasingly scrutinized as it initiates, or fails to initiate, investigations that could not otherwise be opened by the court. In theory, the court intervenes in situations in which a state is unable or unwilling to address genocide, crimes against humanity, or war crimes itself,32 but only in states that have accepted the court’s jurisdiction, unless the situation is referred by the unsc . The treaty-based foundation of the court provides both a morally strong and morally weak foundation. It is stronger than preceding international criminal institutions in that there is not concern over its applying ex post facto (retroactive) law, and there is no question of its legitimate authority to intervene in a realm usually shielded by state sovereignty in member states. Member states have willingly ceded some sovereign authority to this institution. The moral foundation of the court is, however, also weak, in the sense that it is shaped by an unequal global structure and arguably continues to perpetuate global inequalities in the interests of powerful states, and this is particularly evident when we look at the relationship between the icc and the unsc .

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The icc can establish jurisdiction in one of three ways: a member state can refer a situation, the unsc acting under Chapter 7 of the Charter of the United Nations can refer a situation, or the icc Prosecutor can initiate an investigation in accordance with article 15 of the Rome Statute. The first and the third options can set in motion only investigations concerning member states. If the unsc refers a situation to the icc for investigation, however, the membership status of the state is extraneous. Such a case, then, is theoretically open to the same criticisms levelled at the international tribunals. Furthermore, the unsc is then in the position of affecting the work and reputation of the court by generating a condition in which its caseload is shaped by the concerns and self-interests of permanent members of the unsc , states which are themselves not all parties to the Rome Statute. The legitimacy of the court, it seems, rests in the resolution of a tension: the court obtains its legal and moral legitimacy by state support, ratification of the Rome Statute, and yet, in seeming contradiction and tension, its core aim is to deny impunity to those who were able to shield themselves in the statist system, thereby symbolizing that in a world that respects basic human rights no individual can get away with grave abuses against their fellow human beings. The court espouses the idea that there is a higher authority than state leaders when it comes to the most egregious offences, and yet this system rests upon and operates according to procedures set out in the Rome Statute, a constitution negotiated by states. As the legitimacy of the icl system is based, as mentioned above, on both the real justness of the foundation of the system and the popular acceptance of the governing system, these factors, alongside the court’s own acts of partiality or acts that may only seem to be partial, hamper the court’s standing. The next section examines specific African concerns in light of these conditions. The Voice of “Society’s Outsiders” in International Criminal Law The court must give attention to those voicing concerns over its operations, especially when those who are voicing the concerns represent states in which the court is intervening and are, at the same time,

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“society’s outsiders.”33 There is, then, good reason to both dismiss the concerns and tactics of African states and pay them serious attention. The main criticism levelled at the court is that it is an instrument of Western Imperialism: that it is a Western-led institution focused on bringing “justice” to Africa; and that, in not granting head-of-state immunity, it does not respect the will and needs of African leaders. This section examines both of these changes separately. First, there is good reason for real concern over the charge that the icc brings “justice” to “society’s outsiders”34 and shields more powerful, Western states. Because of the icc ’s unique referral system, the cases that make it before the court reflect not necessarily the worst or most deserving of all situations globally in which international crimes occurred; rather the court’s caseload reflects the membership of the court and the judgment of the international community expressed through unsc votes. This unique constitution brings some remarkable conflicting challenges, such as aims to grow a robust international court that respects local ownership of judicial processes and needing the unsc to refer some cases not otherwise under the jurisdiction of the court while recognizing that unsc votes can themselves reflect bias. This condition puts the issue of the court’s legitimate authority in question, especially in cases that are referred by the unsc . The different treatments of Libya and Syria can demonstrate an outcome of this arrangement that can arguably seen as unjust. Neither Libya nor Syria is a member state of the icc . Therefore, only by way of unsc referral could icc investigation of either of these situations be initiated. Libya, a north African state, received the unsc ’s unanimous vote to be referred to the icc in February 2011 for investigation of its government led by Muammar el-Gaddafi (unsc Resolution 1970). Despite arguably similar conditions, a comparable referral for Syria did not develop. In January 2013, a letter sent by Switzerland to the unsc on behalf of fifty-seven states – including the uk , Germany, Botswana, Tunisia, Japan, and Costa Rica – called for a referral of the situation in Syria to the icc to fill an accountability gap.35 There had been global criticism regarding the imbalanced application of icl by the unsc but there was no indication that action to rectify the imbalance would

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be taken. We can understand the lack of unsc attention to Syria as a result of the ties between the country and permanent members of the unsc that possess veto power and can protect their allies from investigation by blocking attempts to refer a case to the icc . Syria has ties with both China and Russia. To some critics, this state of affairs reeks of politics in the absence of objective justice,36 where legal principles become “subservient to political agendas.”37 The unsc ’s relationship with the court continues to fuel criticisms of the court. The Western imperialism critique, which originated from Western involvement and lack of local ownership of processes that are internationally driven, was arguably weakened by America’s strong initial opposition to the court. However, as has been shown in practice, as a permanent member of the unsc , the US is in a position to guide and determine icc involvement in situations without itself being within its jurisdiction. Initially, the US abstained from voting on the first unsc referral, that of Darfur in 2005 (Resolution 1593). Over time, however, the US became more involved in referrals, voting for the referral of both Libya and Syria (the latter of which was continuously blocked by the veto power of Russia and China).38 The fact that unsc members have the power to refer or veto while not being themselves within the jurisdiction of the court is arguably far more detrimental to the legitimacy of icl than the US’s previous antagonistic position against the court’s existence. Within the referrals themselves, there are even examples of bias that undermine the credibility of the court, demonstrating again how powerful states are able to shield themselves from court censure. In the cases of both Darfur and Libya, the influence of the unsc and other powerful global actors is evident in the manner in which nonSudanese and non-Libyan actors in the respective cases are treated. unsc Resolution 1593, adopted on 31 March 2005, referring the situation in Darfur, Sudan, to the icc includes an operative paragraph 6, which excludes investigations of non-state parties, with the exception of Sudan. This has been dubbed “the most controversial aspect of the referral.”39 It is troubling since “the exclusion of some states’ nationals … makes it difficult to reconcile the resolution with the principle of

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equality before the law. Some states’ nationals … are more equal than other.”40 Similarly, the unsc resolution referring the Libyan situation specifically excludes the nationals of any state other than Libya that is not party to the Rome Statute from the court’s jurisdiction.41 Excluding citizens of non-state parties (other than the referred state) hinders the ability of the court to investigate all crimes committed within its jurisdiction in the geographical and temporal situation referred, and also acts to shield unsc member states’ interests. The International Commission of Inquiry on Libya investigated allegations that nato was responsible for violations of international humanitarian law (ihl ). However, any crimes judged to have been committed by nato personnel would almost certainly not be addressed by the icc because of the operative paragraph 6 restrictions. Such selectivity diminishes the icc’s perceived impartiality and legitimacy, and portrays it as a political tool of the unsc .42 In both referrals, operative paragraph 6 illustrates the intentional obstructions of the pursuit of international criminal law by the unsc.43 Given that the icc does not have unfettered global reach, unsc referrals are the only option that leaves the state’s membership to the Rome Statute extraneous, and therefore expand the reach of international criminal justice. However, unsc referrals, like those of the Darfur and Libya situations, are problematic not because they originate from beyond the states’ own relinquishing of some aspect of their sovereignty, but because they exhibit international obstruction of the pursuit of impartial justice, posing clear challenges for the international community to support equitable treatment globally. The legitimate moral authority of these referrals, then, seems questionable. In regard to the criticism levelled against the icc by African states claiming that the icc is an instrument of Western imperialism bringing “justice” to Africa, there is reason for concern for the justness of the process by which situations are brought before the court. It is not that the crimes on the African continent should not be addressed, or that any of the African-based situations currently before the court do not merit icc attention; rather, there are other situations globally that

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warrant attention and have been neglected or purposefully ignored by the court. “Although the icc , just like the un , has gone where it is most needed, its traditional defenders conceded that its enthusiasm to investigate cases in Africa was not matched by similar action elsewhere.”44 This demonstrates real failings in the court’s ability or interest to pursue justice unfettered, at least partly because of the realities of international politics, and is a real concern for the legitimacy of the court. These real problems are the basis of appropriate concern over the legitimacy of the court as a just arbiter. There is a genuine need to address constraints that result in the court being influenced or directed by the interests of powerful states or actors. And then there is the issue of head-of-state immunity. Along with the other concerns mentioned above is the concern, voiced by African leaders, that the court should apply to leaders accused of committing crimes within the jurisdiction of the court the long-standing norm in international law and politics of head-of-state immunity. Arrest warrants issued for heads of state, arguably, make international politics challenging. Members of the  au have pushed for head-of-state immunity since Sudanese President Omar al-Bashir was first indicted by the icc in 2009. In 2013, when Uhuru Kenyatta, who was at the time indicted by the icc , was elected President of Kenya, there was again increased pressure to evoke immunity for leaders of states who must be able to participate in international forums and meetings with foreign dignitaries. Functional immunity has a long history, arising from customary international law and treaty law. It confers immunity on individuals performing acts of state and shields individuals from prosecution for domestic crimes or civil liability. The idea is that heads of state must have some latitude to perform acts and participate in international politics on foreign soil without fear of foreign domestic law. However, there is some debate about whether immunity can be conferred for international crimes such as genocide, crimes against humanity, and war crimes. Generally, the position taken by international law is that no immunity can be conferred for these types of crimes because genocide,

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war crimes, and crimes against humanity cannot be acts of state and because they are jus cogen norms – that is, they are norms from which no derogation is permitted, not even by state leaders. The decision to issue an arrest warrant for the Sudanese President in 2009 marked a significant point in Africa-icc relations, as subsequent to the issuing of the warrant many states on the continent ran afoul of what is arguably their commitment to the court in failing to arrest him. The icc lacks a police force to enforce its rulings and arrest suspects; it is dependent on diplomatic pressure and the cooperation of members to carry out such tasks. In 2016, the icc referred Chad, Djibouti, and Uganda to the un for failing to meet their obligations to cooperate with the Court and arrest Bashir when he visited their countries. Other African states, including Kenya and Nigeria, had allowed the Sudanese president to visit and leave, as had South Africa. In April 2017, South Africa defended itself before an unprecedented icc hearing for its failure to arrest Bashir in 2015. Al-Bashir, who had been in South Africa to attend an au meeting, departed the country “unhindered by the South African authorities who had already been ordered over the weekend by South Africa’s high court to prevent him from departing.45 Despite the fact that its high court ruled that the government’s failure to arrest Bashir was inconsistent with the country’s constitution, South Africa defended its decision to allow alBashir to leave by claiming that it was stuck between two conflicting commitments: its commitment to the icc and its commitment to international law and head-of-state immunity. South Africa argued that the icc warrant did not outweigh a South African law granting sitting heads of state immunity from prosecution and that “There is no duty under international law and the Rome Statute to arrest a serving head of state of a non-state-party such as Omar al-Bashir.”46 While there is good reason to push back against the claims of those who promote immunity for heads of state from ICC attention, any act of pushing back must be sensitive to the environment in which the icc operates in Africa and must be careful not to further entrench ideas of Western exceptionalism. As noted on the preceding issue, there is a problem with a system that holds itself up as an objective

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arbiter of global justice but allows some actors to dictate who should be judged and who should not. The problem is seemingly one of democracy and how we understand justice in relation to it. As a treaty-based international organization, the icc is seen as a democratic institution of sorts, with state leaders representing the interests of their citizens. The fact that actors representing those most affected by the court see their interests negatively affected by court procedures seems to be worthy of attention. We must ask, however, two important questions, one regarding democracy understood as popular control over policies and decisions and one regarding democracy understood as a system of fundamental rights:47 do these actors truly represent the wishes and interests of the citizens of their states, and even if they do can such a decision to grant head-ofstate immunity “lie within some generally agreed on boundaries as to rights, liberties, minimal standards of justice, and so on?”48 Arguably, the answer is no on both accounts and therefore the icc should not defer to the demands of African leaders on this issue. Complying with this demand would result in reinstating the very type of injustice that the icc was created to combat. There are two ways in which the issue of head-of-state immunity can be answered while maintaining that no individual is above the law: the first is to (somewhat rightly) acknowledge and argue that many of the heads of state that are raising this concern are not properly representative of their populations and there interests in immunity are not valid; the other is to couple the first with an acknowledgement that while the self-interested demands of some African leaders may not be valid, neither is the self-interested influence of more powerful nonAfrican states depicted above. Until the Western-imperialism charge that international justice only applies to some states is acknowledged and resolved, the issue of head-of-state immunity may seem to some as a request by the leaders of weaker states for the de-facto protections granted to the leaders of more powerful states. Immunity, especially of the de jure form that would be written into international law, would not be just, and it would be counter to the aims and proclamations of the court and its supporters. Nevertheless, the issue is one

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of protection under the law for select actors, and deserves more than simply a terse dismissal. Let us unpack this. Firstly, some of the most fervent advocates of head-of-state immunity are those pursuing their own self-interests rather than those of their citizens. In an au vote to grant immunity from prosecution to all African heads of states and “senior officials” at the African Court of Justice and Human Rights, a Court which is for now a “long way … (from) an operational reality,”49 but which is often flagged as Africa’s answer to its problems with the icc , “the vote reflected a concerted push on the part of a minority of leaders, two of whom have been charged by the icc . Kenya’s president Uhuru Kenyatta has been accused of fomenting ethnic violence that marred the 2007 elections, and Sudan’s President Omar al-Bashir has been charged with orchestrating genocide in Darfur.”50 Likewise, Kenyatta was the ringleader of the call by the au to its member states to withdraw from the icc .51 Uganda’s President Yoweri Museveni, who criticizes the court for “being used to push ‘the hegemonic post-colonial agenda targeting African leaders,” is a good example of an early African supporter of the icc who referred his own state with his own political purpose and then turned on the court.52 By most accounts, Museveni’s motivation for the self-referral to the court was to discredit the government’s opponent, the lra , “to delegitimize and remove … troublesome insurgents that could not be defeated militarily.”53 Since then, Museveni, himself accused of abuses against his own people, has found it politically useful to criticize the court and accuse it of Western imperialism. It is not, however, enough simply to use what we know of these most fervent advocates of the arguments to dismiss out of hand the arguments that African sitting heads of state deserve immunity from prosecution before the icc or that the icc is part of a system that unfairly judges African leaders. And, while the world continues to point fingers at the leaders, their records, and means of rise to power, the populations of these countries become more and more disillusioned. One could argue that Kenyatta’s election demonstrates the will of Kenyans and their distaste for the icc ’s attention on him. Similarly, it has been reported that “After Mr Bashir’s plane landed in Khartoum

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(after his return from South Africa) he mounted the back of a pickup truck dressed in traditional white Sudanese clothing, waving his trademark walking stick. Thousands of supporters greeted him with patriotic and traditional songs, carrying flags, placards, banners and even a makeshift coffin with the words “laying the International Criminal Court to its final resting place” written on its side.54 Individuals, many of whom once believed in the court as both a mechanism of accountability at home and a great equalizer globally, came to regard the court as impotent and biased. This is a genuine problem for the court as perceived legitimacy and real legitimacy are intertwined. Proponents of immunity are not only those in personal conflict with the court. As mentioned, the au as a whole made statements and voted in ways intended to reaffirm “the principles deriving from national laws and international customary law, by which a sitting Head of State or Government or other Senior State Officials are granted immunities during their tenure of office.”55 The dissatisfaction with the icc in the region might best be explained, at least in part, by its uneven treatment of leaders of different states and the way in which this reflects global inequalities in the international system. If this is the case, there may be hope for a solution that can save the court and the hope it inspired for international justice. Arguably, it is a product of the problem explored above that al-Bashir and Kenyatta were called to answer for their roles in international crimes, but not perhaps Tony Blair or George W. Bush for theirs. It is not, perhaps, the fact that warrants for these leaders were issued (although to some no doubt this is the problem as all bad men have their own supporters and many have an interest in maintaining the old status quo that shielded heads of states), but, as mentioned, that these warrants represent again the uneven distribution of justice globally. Perhaps, in finding a solution to the first problem, we would be better able to address and relieve concerns regarding the second. This is the right approach, as instituting head-of-state immunity at the icc would be a significant step in the wrong direction, “insofar as this ensures that only non-state actors will end up in the dock, the au’s resolution actually entrenches – rather than alleviates – selectivity.”56 The persuasive moral force of democracy is that it protects weak individuals from those more powerful. The idea is that those whose

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interests are affected should have a say in decisions made. In the case of the international system that underpins icl , the court’s legal and moral legitimacy is based on a shaky democracy, one that grants more power to some states over others and that grants representational power to some individuals who do not in fact speak for the interests of the citizens of their states. Both Thomas Pogge and Richard Vernon have made compelling, albeit different, arguments for the moral obligations of individuals to at least safeguard the well-being of distant individuals and to ensure that they are not unreasonably harmed by the global system in which we all exist and interact.57 Vernon argues that to be able to justify compatriot preference, individuals can only selectively confer “benefits on the grounds that those excluded can make parallel arrangements of their own” and a duty to aid is built into a justification of compatriot preference.58 Therefore, minimally, allowing leaders who are not democratically elected or representative of their citizens to represent them on the global stage, especially in matters such as head-of-state immunity which may very well contribute to or shield atrocious abuses against citizens is unjustified. However, trying to strengthen democratic representation within the Assembly of State Parties (asp ) of the icc is not necessarily the answer. International institutions arguably can only be very poorly democratic under the best conditions, at least in the sense of popular control. The larger the organization and its jurisdiction, the less capacity any individual has to influence it.59 It is, nevertheless, possible to save the court’s legitimacy and its democratic foundation by strengthening its realization of democracy in the second sense: a system of fundamental rights. In fact, it was this foundation, combined with democracy as popular control in the form of a treaty, from which the icc arose. Conclusion The tensest period in the relationship between the icc and the African continent seems to have passed. During that tense period, the au led a call for deferral of icc proceedings in the al-Bashir case,60 negative local attitudes towards the court in Kenya might have been instrumental in the popular vote that brought to power icc indictees Uhuru

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Kenyatta and his deputy William Ruto in 2013,61 and Ugandan President Yoweri Museveni, despite his invitation to the court to investigate crimes committed in Uganda, wouldn’t commit to being a friend or a foe of the court and both sided with the court62 and disparaged it, calling for African states to withdraw and accusing the icc of being a tool of Western states targeting African nations.63 African states via the au , as mentioned, had voted for a mass withdrawal from the icc and in September 2013, months after Kenyatta and Ruto assumed office, the Kenyan Parliament voted on a motion “to suspend any links, cooperation and assistance” to the court.64 Not much came of these statements, threats, and motions. Although the Kenyan withdrawal motion would have had “still to pass at least one more parliamentary hurdle [that] could take a year or more to come into effect,”65 three years later Kenya was still “giving serious thought to withdrawing” and at the time of publication, no more concrete actions have been taken. It was also for a while unclear what South Africa’s intentions were toward the court since its withdrawal of its notice to withdraw in response to its High Court’s ruling. In this case as well, no further actions towards withdrawal have been taken. In 2021, the new government of Sudan stated that it would hand ex-President Omar al-Bashir over to the icc .66 Even if the storm has passed in the relationship between the icc and Africa, there are important questions and lessons to be considered. For a court that claims to be an independent international institution capable of prosecuting some of the worst atrocities committed by individuals against their fellow human beings and also an important symbol of international consensus on the denial of impunity for individuals who commit such crimes, the rocky road it has weathered on the African continent is a concern. For a few years in the early 2010s, the road looked unstable indeed. Despite the current calm, there is reason for supporters of the court to continue to worry both about the specific concerns some African states voiced and also the fact that any regional dissatisfaction would be indicative of legitimacy problems real and perceived. The concerns voiced by African actors (and others) that the court has focused too narrowly on the continent is reflective of a real problem, that the court is not an institution capable of objectively administering

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global criminal justice. The court is challenged by the tension created by its treaty foundation and the realities of international politics: it must attempt to deny impunity globally or be seen (and rightly so) as unjustly selective, while being shackled by the restraints of a statenegotiated founding statute. To summarily deny the concerns of the states most affected by the court is to do real and continuous damage to the legitimacy of the icc . On the other hand, to suggest that all concerns voiced by states that are most affected and can apply real pressure because of their substantial proportion of the court’s support must be resolved satisfactorily to those who have the loudest voice is not to relieve concerns of lack of objective international criminal law, but rather to add to them. If the court were to revisit the idea of head-of-state immunity, it would be a serious blow to the underlying purpose of the court. While African states may be the international systems “outsiders,” the citizens of these states, whose lives are shaped by leadership that is often contested and criticized for its lack of democratic foundation, its duration and/or links to human rights abuses, require even more consideration, not less. It is in the interest of justice, the court’s legitimacy, and the court’s ability to operate that the court do a much better job of listening and trying to find appropriate compromises to solve problems felt by its member states and their citizens.

Notes I would like to thank Charles Jones, Neil Hibbert, and Steve Lecce for inviting me to contribute to this book and of course to Richard Vernon and his work for inspiring this chapter, which lays the groundwork for my thinking about the how democracy, representation, and Africa’s relationship with the icc affects the court’s legitimacy. After writing this chapter, I further developed this thinking and what it could mean as an opportunity for African states to harness their position to influence other global actors who want to maintain the existence and legitimacy of the court. That version, that speaks to the uniquely powerful position of African states, was published as “Africa’s Role in the Progression of International Criminal Justice: A Moral and Political Argument” in the Journal of Modern African Studies in 2018.

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1 Rome Statute of the International Criminal Court, Preamble. 2 Gegout, “The International Criminal Court”; Moffet, Justice for Victims before the icc, 282–6; Jacobs,“Some Additional Thoughts.” 3 Kersten, “The International Criminal Court’s Turn to the Symbolic.” 4 Vernon, “What Is Crime against Humanity.” 5 Schabas, The International Criminal Court, 2. 6 Although states were the principal actors, it is important to remember that nonstate actors also had a very significant role in the creation of the court and the negotiation of the Rome Statute. As William Schabas reminds us, “Literally hundreds of non-governmental organizations participated actively, many of them determined to raise the profile of specific issues” (ibid., 22). 7 Resolution 46/54. 8 Bassiouni, “Negotiating the Treaty of Rome.” 9 Schabas, The International Criminal Court, 239. 10 Schabas, “United States Hostility to the International Criminal Court.” 11 Procopio, “Reforms or Withdrawal?” 12 In 2016, the prosecutor also opened a proprio motu investigation into alleged crimes committed in Georgia. 13 Procopio, “Reforms or Withdrawal?” 14 Ombuor, “Kenya Signals Possible icc Withdrawal.” 15 Dakar, “Gambia Will Withdraw Its icc Withdrawal, eu Official Says.” 16 York, “African Union’s Mass Withdrawal Strategy Mounts Pressure on icc .” 17 Ibid. 18 Morris, “The Democratic Dilemma of the International Criminal Court”; Fichtelberg, “Democratic Legitimacy and the International Criminal Court”; Gegout, “The International Criminal Court.” 19 Fisher, “Selectivity, Legitimacy and the Application.” 20 Dickinson, “The Promise of Hybrid Courts.” 21 Fisher, Moral Accountability and International Criminal Law. An expressive justification for criminal law posits that the components of the system are social goods as instruments of social communication. The prosecution, conviction, and infliction of punishment have symbolic significance and aim to communicate to the perpetrator and the broader community a particular message of condemnation for specific behaviour that has been prohibited by that society and promulgated as law. 22 Baines, Roco Wat I Acoli; Hovil and Lomo, “Whose Justice;” Allen, Trial Justice. 23 Kersten, Justice in Conflict.

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24 Fisher, “Selectivity”; Fisher and Stefan, “The Ethics of International Criminal ‘Lawfare.’” 25 London Charter: Article 1. 26 Pal, “In Defence of Japan’s Case 1 and Case 2.” 27 Chesterman, Just War or Just Peace. 28 Benvenuti, “The icty Prosecutor.” 29 International Tribunal for the former Yugoslavia (icty ), “Final Report to the Prosecutor.” 30 Roth, “Try Saddam in an International Court”; O’Donohue and Rigney, “The icc Must Consider Fair Trial Concerns.” 31 Nouwen and Werner, “Doing Justice to the Political.” 32 The court shall exercise jurisdiction over the crime of aggression in accordance with Article 15 bis, subject to a decision to be taken after 1 January 2017 by the same majority of states parties as is required for the adoption of an amendment to the statute. 33 Simpson, Law, War, and Crime. 34 Ibid. 35 Human Rights Watch, “un Security Council: Heed Call for Justice in Syria.” 36 Chulov, “Libyan Government Asks Why icc Isn’t Also Seeking to Prosecute Syria”; Proudman, “Syria Immune from Being Held Accountable by icc for Atrocities.” 37 Arbour, “The Relationship between the icc and the un Security Council.” 38 United Nations, “Referral of Syria to International Criminal Court Fails.” 39 Cryer, “Sudan, Resolution 1593, and International Criminal Justice,” 208. 40 Ibid., 217. 41 United Nations Security Council Resolution 1970. 42 Birdsall, “The Responsibility to Prosecute and the icc .” 43 Fisher and Stefan, “The Ethics.” 44 Makokha, “African States Push for Heads of State Immunity at the icc .” 45 Onishi, “Omar al-Bashir, Leaving South Africa, Eludes Arrest Again.” 46 van den Berg, “South Africa Defends Decision.” 47 For a good discussion of the two (often overlapping) understandings of democracy, especially as they relate to international organizations, see Dahl, “Can International Organizations be Democratic?” 48 Dahl, “Can International Organizations be Democratic?,” 26. 49 Bradfield, “Wither Impunity?” 50 Oakford, “African Leaders’ Vote for Immunity Is Sending a Cynical Message.” 51 Killander, “Withdrawal for the icc .”

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52 Wanambwa, “Museveni Attack on icc Dominates Independence Celebrations.” 53 Tiemessen, “The Paradox of Lawfare.” 54 Onishi, “Omar al-Bashir, Leaving South Africa, Eludes Arrest Again.” 55 South African Government News Agency, “Sitting Head of State Immune from icc Charges.” 56 Kersten, “What Gives?” 57 Pogge, World Poverty and Human; Vernon, “Humanitarian Intervention and the Problem of Internal Legitimacy.” 58 Vernon, “Humanitarian Intervention and the Problem of Internal Legitimacy,” 43. 59 Dahl, “Can International Organizations be Democratic?,” 22. 60 Oette, “Peace and Justice, or Neither?” 61 Wamai, “The International Criminal Court and the Kenyan Election.” 62 Musisi, “Museveni to icc .” 63 Walubiri and Lumu, “Museveni Blasts icc over Kenyatta Trial.” 64 Al Jazeera, “Kenya Parliament Votes to Withdraw from icc .” 65 bbc , “Kenya’s mp s Vote to Withdraw from icc ”; Elbagir, Alkhshali, and Abdullah, “Sudan to Hand ex-President Omar al-Bashir to ICC .” 66 Elbagir, Alkhshali, and Abdullah, “Sudan to Hand ex-President Omar alBashir to ICC .”

Chapter Seven Territorial Right of States and the (In)justice of Immigration Control Margaret Moore The question of immigration control is closely bound up with a number of important questions in contemporary political theory that connect with themes in the work of Richard Vernon: justice, individual and collective rights and responsibilities, the nature and source of political authority and self-determination. In this chapter, I focus on the relationship between the ethics of migration and territorial rights, and by the latter term, I mean more specifically how we should think about and justify state territory. This chapter considers the question: what are the prospects for defending a plausible theory of state control over immigration, especially when that question is situated within a coherent account of territory? I argue that neither of the two dominant theories of territory provide a coherent guide to how we should think of control over state borders – which is surprising, given that this control is standardly viewed as one of the dimensions of territorial sovereignty. Lockean/libertarian views are indeterminate with respect to immigration policies and practices, and this indeterminacy reveals a problem in property accounts of territory. Kantian theories – which are generally thought to product a coherent, statist defense of territory – do not in fact articulate a clear account of control over borders, a facet of what we normally think of as a right to territory. The chapter then argues for an alternative understanding of territory – an alternative to Lockean and Kantian theories – and argues that this theory of territory can articulate a coherent approach to issues of migration.

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The standard answer to the question of who or what has entitlement to control the flow of people across borders is the statist view that the modern state can function properly only if it has control over territory,1 and that this involves three dimensions.2 First, there is jurisdictional right: the right to make and enforce law (within a territory) and there is a correlative obligation on the part of citizens, or indeed all people within the territory, to obey the law. Second, there are rights to control or prohibit movement across the borders of the territory. Third, there is a right to tax, regulate, and control natural resources within the territory of the state. Many international relations theories simply assume this as definitional of what it is to be sovereign over a geographical domain, and that whatever justifies states (the production of common goods such as peace and order) will also justify these three different dimensions of state sovereignty. This cluster view of the various rights that are assumed to be embedded in state sovereignty is questioned by the methodological approach of this chapter,3 and has also recently been challenged by other theorists of territory and by cosmopolitans.4 Cosmopolitans have argued that state control over immigration is deeply problematic, either because it constitutes illegitimate coercion against people who are not authors of the rules to which they are subject5; or because it violates the rights of foreigners, either their distributive justice rights6 or their right to free movement (or both).7 Most of these arguments are framed, however, not in terms of the overall theory of territory but as questions of applied justice, where justice issues are raised with respect to immigration policies and the underlying question is what a just immigration policy looks like.8 This chapter pursues a different route: it examines theories of what gives a state authority over territory, and then examines the implications of this theory for state control of the flow of people and goods across borders. Before I begin, it is useful to reflect on the general difficulties that the account must overcome. First, the account must be an account of the right to regulate borders: it could be an open border or a closed border account – but it must be an account of a right to control entry (of goods and peoples) over borders. The second desideratum is that the

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overall theory of territory that it relies on must be is coherent and plausible. Third, the relationship between the theory of territory and the theory of immigration should be coherent. Finally, the account must be able to meet the serious justice-related objections to restrictions on immigration, which have been advanced, most prominently, in the cosmopolitan tradition. This means that the contours of the right must also be assessed according to generally accepted concerns of background justice.9 The structure of this chapter follows these basic challenges. The first two sections of the chapter assess the two dominant accounts of territory in the literature and explore the relationship between the theory of territory and the question of immigration. I argue that the Lockean theory of territory as property offers a theory of border control but is not a plausible theory of territory, and is also not in line with typical libertarian sentiments of the right to free movement. The Kantian theory offers a more plausible theory of territory, but a weak theory of the right to control borders, which doesn’t seem fully in line with the statist justification. In the third section, I put forward an alternative, non-Kantian theory of territory as a domain of jurisdictional authority. This argument is like Immanuel Kant’s in so far as it views territory as a geographical domain of jurisdictional authority, rather than as a kind of property, but it departs from Kant in significant ways. Specifically, I defend an argument for the collective self-determination of political communities, which grounds the first aspect of territorial right – the idea that states should have jurisdictional authority over their collective lives – and then extends this argument to the right to control immigration. In the fourth part of the chapter, I defend this view of territorial right to control borders against two possible objections from a justice direction: the first considers restrictions of immigration as violating a human right to freedom of movement; the second is a broadly cosmopolitan distributive justice objection that sees restrictions on immigration as contributing to inequality and deprivation by preventing people from improving their situation by moving to more prosperous parts of the world. These justice-based concerns constitute a limit on appropriate, or justified, collective self-determination.

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Lockean/Libertarian Conceptions of Territory and Immigration One of the most prominent arguments for state control over territory takes as a starting point John Locke’s argument for limited government and his related account of territory. This theory – which I call here the individual property account of territorial right – is crucial to much libertarian thinking about the state, and offers an account, both of the kind of thing that territory is, and the rights that attach to it. In the Second Treatise, Locke argues that there is a natural right to private property, stemming from the idea that all people have a right to the fruits of the earth: “Whether we consider natural reason, which tells us that men, being once born, have a right to their preservation, and consequently to meat and drink and such other things as nature affords for their subsistence; or revelation, which gives us an account of those grants God made of the world to Adam, it is very clear that God … has given the earth … to mankind in common.”10 This fundamental right (to subsistence) is combined, in Locke’s thought, with the idea that labour is the mediating device by which individuals can transform external objects in the state of nature into private property. However, Locke argues that the right to private property is limited by the right to subsistence (to preservation and consequently the fruits of the earth). The limits of the right are defined by “the Lockean proviso,” which requires that individuals may only legitimately appropriate unowned land where there is “enough and as good left in common with others,” although this rather strong statement of the proviso is subsequently significantly weakened.11 A crucial point is that this account rests on the acceptance of natural property rights. Locke then asks us to imagine persons (either individuals, or loosely associated persons such as families, many of whom have property in land) combining together to create a state. When people consent to make or join a political society, their consent should normally be understood as consent to whatever arrangements are necessary for a peaceful, stable society.12 Locke argues that people would consent to majority rule, to obedience to and support for law (within the limits of natural law) and, importantly, for this account of territory, consent to

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incorporate one’s rightful landholdings into that territory over which the society will have jurisdiction.13 In this way, territory is created as a result of the consent of individual property holders, and the natural right to property is conceptually prior to the state, and the basis for the state’s jurisdiction. Legitimate territorial right is established through the subjection, by free consent, of persons and their land to state authority. Territory, on this account, is derived from property. The territorial right of the state is based on an argument about individuals’ prior, natural right to private property and the territorial domain of the state is an amalgam or collection of individual private property holdings by those individual property owners who agree to establish a government (legislative, executive, and judiciary) to rule over them.14 This account does have a number of advantages. First, it explains how particular pieces of land are “attached” to particular groups of people: when free individuals create a political community through consent, the territory of the state is simply the land or property that they possessed (and had moral or natural rights to) prior to this incorporation.15 Second, if we think of territory as like property we have little difficulty arguing that there is a capacity to control borders. If all territory is an amalgam of land that is privately owned by individuals, and they are free to do with their property as they please, then individuals are free to enter the territory of another if they obtain permission. On Hillel Steiner’s view, this means that “all land titles would be private ones and an unwelcome foreigner would ipso facto be no more welcome than an unwelcome fellow resident.”16 For other Lockeans, such as A. John Simmons, the issue of immigration is not a matter for individual private property holders but for the collective, once the state is created. Of course, in creating a state through freely incorporating it, the individual agents have to agree to decision-rules about the governance of the land so created. It is not clear from the individualist Lockean picture what exactly the decision rule would be, though the argument is consistent with democratic principles. This means that the parties to the agreement, the people who freely joined together to create a political community, have a right to decide for themselves what policy with respect to immigration to adopt. The view is consistent both with

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an open-door policy with respect to immigration and with completely closed societies, with no immigration. There are, however, two problems with this theory. First, there is a problem with the transition between individual private property holdings and territorial jurisdiction. On the most sophisticated versions of this account (Simmons, Steiner), individuals who rightfully hold property in land agree to the establishment of government to preserve peace and enforce natural law. They also, Simmons claims, implicitly agree or consent to the “following arrangement: subjects will not bequeath, sell or otherwise alienate land incorporated into that state’s territories except on the condition that subsequent holders of that land will also be bound by the obligations of membership, including subjection of the land to state jurisdiction.”17 This does not preclude the possibility that territory can be legitimately added to the state, through purchase or seizure or additional consent, but it does prevent the territory from being perforated by seceders, dissenters, or alien presences subsequently. There are some serious difficulties with this account of territory, many of which have been well rehearsed amongst territorial rights theorists. The usual criticisms concern either the role of consent in the theory, and the implausibility of requiring consent, or justifying anything like the existing state order, and its territory, in terms of consent18; or the criticism that this argument does not seem to justify the contiguous jurisdictional authority of territorial states,19 where the writ of the law applies to all those contained within the external boundaries but there is no un-owned or dissenting interior land (although, as we have seen, Simmons has a response to this concern).20 Second, and more interesting from the point of view of the question animating this chapter, there is a tension between the implications of the Lockean theory of territory as an amalgam of property rights, and the fundamentally contractualist and freedom-respecting views of most libertarians and Lockean liberals, whose views about immigration and other government powers operate within a classic liberal framework.21 Many libertarians appeal to a basic right to freedom of movement, typically situated within an overall view that individuals

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should be permitted the widest possible liberty compatible with a like liberty for all. This view is grounded in the idea of individuals as self-owners who should make decisions about their own life and act as choosers, without interference by others. It is libertarian because it relies on the idea of inviolable individual liberty against the dictates of the state, or collective entity. As Fernando Téson and Loren Lomasky note in their recent book, there is no general obligation to provide relief to others but we ought not to harm them.22 This sharp distinction between negative and positive duties is based on a presumption in favour of individual liberty, an injunction against harm, and the idea that “barriers” to “peaceful pursuits” constitutes a form of harm. Consistent with their libertarian commitments, Téson and Lomasky – in typical libertarian fashion – privilege individual moral rights over the rights of the collective: “People,” they note, “are not possessions of their home country, to be deployed in service of its collective goals. Rather, moral priority runs in the other direction. Individuals are the primary rights holders; to the extent that associations or corporations or states can be said to have rights at all, their entitlements are derivative … Moral clarity is better attained by keeping the focus clearly on the ultimate moral claimants.”23 From these two claims, it seems to follow that restrictions on immigration, in the interests of the state, are indefensible. They represent a violation of individual liberty, an unacceptable “harm” when directed at prospective immigrants who seek to move in order to engage in peaceful pursuits. It would seem then, that a libertarian society would support an opendoor immigration policy, and be supportive of general labour mobility, especially since “free” and mutually beneficial contracts are at the heart of the theory. However, as the theory of territory (as property) makes clear, there is no general duty to permit people to enter your property/ your collective territory to do the associating or to make these contracts. This means that, while libertarian societies and libertarian governments would tend to support permissive immigration policies, the account of territorial right leaves the particular policy at the discretion of the government. This suggest that libertarianism’s two fundamental

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commitments are in serious tension: (1) property ownership rights and (2) freedom of movement, both of which are based on a fundamental commitment to liberty, and which one might think have to be balanced against each other. If one emphasizes property ownership rights, then closed borders seems to be the result. If one emphasizes freedom of movement, open borders seems to be the result. Thus, libertarianism doesn’t tell us whether to support open/closed borders in any clear way. This means that it is in fact indeterminate with respect to immigration policy, which is all the more interesting given that libertarians such as Téson and Lomasky typically defend open borders. In fact, however, the Lockean theory of territory – once understood as a conglomeration of individual pieces of property – cannot determinatively support open borders, since the right to private property includes the right to keep people off territory. The Kantian Conception of Territory and Immigration For those unpersuaded by the idea of territory as a kind of property, or derived from individual property-holdings, the main alternative, indeed dominant, view of territory in the literature is put forward by Kant and advanced by Kant’s contemporary followers.24 The Kantian view is often appealed to, either explicitly or implicitly, in most cosmopolitan writings on justice and immigration. In many respects, this is the mirror opposite of the Lockean view, because property rights are derived from the state’s exercise of jurisdiction. It is the state in the exercise of its jurisdictional authority that determines property rights, through zoning laws and regulations, rights of bequest and transfer, and other legal ownership rights. The jurisdictional authority view is primarily associated with Kant who argued that people have an obligation to leave a state with no political authority and therefore lacking in justice, and submit to a common jurisdictional authority. This obligation is initiated by the possession of things in the external world (which are not yet properly called “property”). This possession is viewed as an extension of

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individual freedom in the sense that people are permitted to make free choices and to use objects in the external world for their freely chosen aims but it also seems to contradict freedom, since removing things from common use in the external world prevents other people from enjoying the property, and is an improper interference in their freedom.25 The only way to ensure that our innate right to “freedom” can “coexist with the freedom of everyone in accordance with a universal law”26 is through the creation of jurisdictional authority (a state) that reciprocally recognizes everyone’s rights to property. This reciprocal recognition involves creating a civil condition, which ensures that my freedom will be respected and that the freedom of others will be respected, an assurance that cannot be met in the state of nature. This transforms the use of external things from the coercive will of one person to the general will of a jurisdictional authority, because it provides a framework of general rules, which is the foundation of civil society.27 The usual criticism of Kant’s theory of territory amongst territorial rights theorists is that it succeeds only in demonstrating why states are necessary, and why individuals should submit to a state rather than remain in the state of nature, but does not show how particular states can have authority over which particular territories. As David Miller has argued, this account does not explain what an individual ought to do to when situated between two different states, each claiming jurisdictional authority, each promising to secure property rights through the application of the state’s framework of public law.28 Less commented upon, and more importantly for the purposes of this chapter, is that this argument does not explain all aspects of state authority that we normally associate with rights to territory, and which we generally assume to be justified by Kantian theory. Specifically, with respect to the second aspect of territorial right – the movement of people and goods over territory – it seems to follow from Kant’s position that the state can only legitimately prevent people from travelling to a territory when this would threaten civil society itself. This is because jurisdictional authority is necessary to make property rights conform to the supreme law of morality, which explains why jurisdictional

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rights are important, but it is not clear that this extends to the right to prevent people from entering the territory of the state. The state would be justified in restricting entry if prospective migrants were threatening to the creation or maintenance of lawful order, but states exercise control over borders for reasons other than simply defending the state from destruction. In support of this interpretation, consider Kant’s argument in “Perpetual Peace,” where he outlines the migrants or traveller’s right to access and reside on a territory, “as long as he behaves in a peaceable manner in the place he happens to be.”29 It is not analogous to the right of a guest to be provided with things; it is a permission to reside in the territory and not be treated with hostility30 – and it suggests a duty on the part of states to permit people to freely enter their territory. The clear implication is that immigration policies, designed to prevent some people from entering state territory, for a range of diverse public policy reasons are unjustified. Of course, this doesn’t show that Kant’s account is wrong. But it does show that the particularity problem – which is usually associated with Kant’s failure to justify particular states’ defence of particular tracts of land – also impacts on our understanding of the rights to migration. That is to say, Kant’s argument usefully explores the relationship between justice and state authority, but the structure of the argument in terms of realizing the conditions of right cannot explain why particular collective entities may have particular reasons, internal to its associational life, for designing policies in certain ways rather than other ways. There is a kind of particularity requirement implicit, I think, in immigration policy: the right to control territory is not the right simply to defend justice as a universal ideal, but must locate moral value in each particular state, if it is to explain and justify control over immigration, which is thought to be an essential dimension of territorial right. The right to defend borders is thought to be a right to ensure that the policies with respect to borders are consonant with the general terms of the associational life of the community, not simply with the more abstract norms of universal justice, for that could only

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justify restrictions if that were required from the standpoint of defending justice as a universal ideal. Territory, Jurisdictional Authority, and the Value of Self-Determination In this section, I put forward an account of territory as a geographical domain of jurisdictional authority, in which political communities are themselves sites of justice. However, I depart from Kant in arguing that part of their value inheres in the fact that they are the sites in which co-members create and maintain justice and are thereby collectively self-determining. Members of political communities establish rules of justice to regulate their lives together, and these are not simply rules of social regulation, but reflect a particular conception of justice internal to the political community. This is not a relativist approach to justice, although it rejects the view that there is a singular just or right ordering of the basic institutions of society. We can reasonably disagree on whether the appropriate principle of distributive justice is, for example, prioritarian (giving priority to the worse off ), a threshold conception (where the most important goal is to avoid serious forms of deprivation, understood in absolute, not relational, terms), or egalitarian (and if the latter, whether we are concerned with luck egalitarianism or relational equality, equality of welfare or of resources), and so on, and this example could be multiplied across a wide range of institutional structures.31 Just as different individuals might disagree on these issues, so different political communities might arrive at different answers to the question of what principles should be institutionalized in a just society. Nor is the basis of this plurality of ways of justly ordering society rooted in the empirical fact that there is no agreement amongst societies or people or philosophers on the matter. Rather, the problem is more fundamental: even if we think that the fundamental principles of justice reflect moral reasons, these basic norms are consistent with a wide number of ways of organizing one’s collective existence, and social conventions and specific rules of justice at the society-wide level. These more specific rules or practices are necessary

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to give content to the more abstract requirements of universal justice, such as the requirement to show respect for persons. Although at some level, the argument emphasizes the plurality of different ways of organizing society, and hence pluralism of rules of justice, the main point is that the precise content of justice, and especially the forms of behaviour and institutional rules elaborating the principles, are underdetermined by the relatively abstract, morally valuable property embodied in more abstract principles of justice, e.g., the requirement to show respect.32 This understanding of justice is at the core of the first bundled territorial right: the right to jurisdictional authority. The right to jurisdictional authority is the right of a political community to make decisions about the collective conditions of its existence; it is the mechanism by which members of political communities implement and maintain their own conception of justice. They have a right to jurisdictional authority – to establish rules that govern their collective life together – not because these rules are substantively just from an external perspective, but because they have the right to make these decisions, to establish justice for themselves, over their own lives. This is a right that inheres in the group, even if the rules thus made are not better (in some sense of “better”) than the rules that went before. It is the capacity to make rules, to be non-dominated as a group, which undergirds the claim to jurisdictional authority. Rules about entry and exit can be straightforwardly understood as an extension of jurisdictional authority. This is often obscured from view because people tend to think of jurisdictional authority as involving the state and its citizens, and immigration rules typically apply to people seeking entry (non-members).33 In fact, however, rules about entry and exit are just one sort of rule that co-members of the political community make to govern their relations within a territory. To see this, imagine that a potential immigrant manages to get to a territory and then the jurisdictional authority says that they can only stay/remain on the territory if they have a visa of a certain type. Under one description of this, it is, as Simmons says, a direct right against aliens. 34 However, it should also be seen, not as something distinct from the exercise

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of jurisdictional authority, but flowing from it. It’s true that the rules often apply before the immigrant actually arrives, but this way of exercising jurisdictional authority is easily explained: it is more efficient to check that the visa is of the right type, that the person has the proper kinds of permission before they enter the territory, than to wait until they are actually on the territory, and so subject to removal. This may have obscured from view the way in which rules about migration and immigration are direct exercise of jurisdictional authority, applied across a geographical domain (a territory). There are good reasons why a collectively self-determining group, which has significant forms of control over the conditions of their existence, would seek to have control over who and how many enter their community. Control over many aspects of one’s collective life – from education policies, health care policies and services and so on – are impacted by issues connected to demographic balance, between rural and urban communities, for example, the rate and flow of migrants, and the kinds of migrants that one accepts. At some level, then, it would make it difficult for political communities to make collective choices without some capacity to make choices over this vital component of many different policies. Indeed, it is hard to see how a political community could exercise significant control over the collective conditions of their existence if they lacked this kind of control. This point can be made by considering, for a moment, the lack of control over the collective conditions of their existence that might characterize those groups, or communities, that cannot exercise control over membership.35 Consider, for example, the fate of many minorities in China, who lacked this kind of control, and found that their collective self-determination, indeed their relationship to the land and their capacity to make rules of justice over the conditions in which they lived, was thereby jeopardized. The Chinese policy of moving Han Chinese to Uighur, Tibetan, and Mongolian areas of China swamped the land with settlers and denied the associational life of the minority groups and their capacity to determine the context in which they live. Indeed, if we find “ethnic cleansing” repugnant, we should find this strategy repugnant, too: the means are different, and arguably

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not as coercive, but the end (control over territory) is the same.36 It represents a denial of the associational life of the communities living on the land, and their capacity to determine the context in which they live. These policies, it is safe to say, would not have been pursued if the Uighurs, Tibetans, or Mongolians were self-governing peoples, who had jurisdictional authority over their land, and were able to decide the basis on which people should be permitted entry. Finally, one of the advantages of this theory over the two rival accounts of territory, discussed above, is that it correctly situates the problematic nature of immigration in relation to community rights. One of the features of both the libertarian and the justice theories of migration – and the concomitant theory of territory as either property or the domain of justice – is that migration is regarded simply as a right of the individual (to free movement, or subsistence rights). This is partly correct: individual rights certainly have to be in play, as I argue below. But in order to correctly identify what is at stake on the other side – and why issues connected to the ethics of migration are so hotly contested in the contemporary world – it is important to recognize that this is not a case of weighing individual rights against one another. After all, we can probably rightly assume that every single individual migrant, or prospective migrant, has a much stronger interest in being admitted to a state than the state does in keeping that person out. But it does not follow – indeed, as I’ve argued elsewhere,37 it’s a fallacy of composition to assume – that something is true of the whole if it’s true of some part of the whole, or even every part of the whole. It does not follow from the fact that I will see the movie screen better if I stand up that we will all see the movie screen better if we all stand up. And it doesn’t follow from the fact that one migrant is not deleterious to the self-determination of a political community that open borders – and millions and millions of migrants – will therefore have no effect on the self-determination of the political community. The issue here is not simply one of weighing individual rights or individual justice but that the net effect of thousands or millions of migrants will impact on the capacity of the people as a whole to be self-determining over the collective conditions of their lives.

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Objections Considered Even if the account of territory outlined in the section above offers a coherent account of the moral value of territory, and its relation to self-determination, and even if we accept the view advanced there in which control over immigration is straightforwardly an extension of the political community’s jurisdictional authority, there would still be a problem if immigration controls were thought, in their essence, to violate basic human rights or constitute a serious injustice. In this section, I consider two of these criticisms: the first is that restrictions on immigration violate the moral rights of people to free movement; in the second part of this section, I examine what I regard as a much more serious objection, namely, the criticism of borders that focuses on its global distributive justice implications. Both will be discussed ad seriatim. Free Movement One of the central criticisms of restrictions on immigration is that they violate the moral rights of people to freedom of movement. The second section discussed this view, especially as it is put forward by libertarians, and explored the tension between it and the libertarian view of territory as derived from individual property-holdings. However, this does not dispense with this argument, which is also sometimes put forward by egalitarian (or social justice) liberals. Joseph Carens, for example, has argued that, “at the level of principle, a commitment to freedom and equality as fundamental moral values would require states to have open borders.”38 He defends this claim on two grounds: the first is “that we should regard freedom of movement as a basic human right”39 and the second is in terms of the requirements of egalitarian global distributive justice. Although Carens is careful to note that the idea of “freedom of movement as a basic human right” does not involve, for him, an absolutist position, and therefore that this human right has to be balanced by other considerations and limitations, it nevertheless counts as a morally weighty consideration when it is placed in the balance against other factors or goods.

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The problem with appealing to the right to cross borders as a simple extension of the basic human right to free movement is that it seems to require the adoption of a maximal view of the right to freedom of movement. While it is surely the case that people who are denied the right to free movement – they are strapped into chains – are denied a basic liberty right, it is less clear that this argument works with every restriction on options or on movements. The reason for this is that the right to freedom of movement, like most autonomy-based rights, are most plausibly described in sufficientarian terms, rather than given a maximalist interpretation. Government policies, practices and regulations involve all kinds of restrictions on human actions, including prohibitions on where people can go, and regulations regarding how they can act. On the sufficientarian account of the right to free movement, defended here, each person is entitled, as a matter of human rights, to a sufficient degree of freedom of movement. This would mean that restrictions – that is, reduced options to one’s free movements – might need to be justified by reference to justified policy goals – the state ought still to justify its actions, and to justify restrictions on people’s choices – but they are not a violation of the basic right, as long as they are beyond what is sufficient to protect autonomous agency. Of course, it may be the case that even a sufficientarian understanding of the right to free movement requires that one be able to cross (at least some) borders, but that would require additional arguments, and is not plausible in the standard case of an individual living and residing in a country that is reasonably large and inclusive of many options, from which they can build an autonomous life. The justificatory argument advanced above, in the third section, can also explain the difference between restrictions on border control within the state and between states. The regulation of goods and people across borders is important if political communities are to enjoy robust forms of collective self-determination, and we do not typically associate sub-state entities with these kinds of stronger self-determination. This is why we do not typically need to have passport controls within countries, to regulate people’s movements. The type of internal passports we often associate with apartheid South Africa or communist

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Russia are forms of internal surveillance and control, part of a package of mechanisms designed to control the population. They are not associated with the idea of strong, democratically authorized collective self-determination. We might think differently of internal controls, however, if the entity exercising that control did have strong decentralized self-determination below the level of a state. If Tibet was able to exercise self-determination within a larger China, and this involved regulation of peoples and goods, we would regard it differently than similar forms of control exercised by the state, in the interests of enhancing its power. This suggests that one problem with the argument for open borders, grounded in the right to freedom of movement, is that it fails to distinguish clearly between freedom of “movement” and freedom of “settlement.” Much of the plausibility and weightiness of this argument is derived from the visual and psychological connotations of “movement,” because it implies a very intrusive regulation in physical movement. And indeed, some types of migration control do place burdensome and unreasonable restrictions on autonomous movement for purposes that do not entail long-term settlement. But the type of movement that is really at issue in arguments about control over borders is the movement associated with labour and resettlement, although of course there are also quite reasonable restrictions on people likely to commit crimes of terrorist activity. So it’s easy to agree that movement is a basic human right and that there should be a high burden of justification for constraining a person’s ability to travel, to go to a certain place at a certain time, and even more generally their decision to live in a particular location within a particular broad community, which is why restrictions on movement within the same country are so unconscionable. Settlement, however, is quite different, for it is directly and obviously related to self-determination in a way that “human movement” generally is not. The most obvious example is Palestine, where the settlement of Jewish families might increase the social welfare and autonomy of those specific families but it clearly interferes with Palestinian self-determination. On the other hand, refusing the right of Christians or Jews to religious pilgrimage to Jerusalem for example would be an unreasonable restriction

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on autonomous movement if there was a Palestinian jurisdiction over these holy sites. In summary, while all restrictions on liberty require justification, in the sense that there ought to be good policy reasons to justify it, not all restrictions count as a violation of the basic human right to free movement. This sufficientarian understanding of the right to freedom of movement is different from Carens’s view, which, on this issue, is much closer to libertarianism, because Carens requires every restriction to be balanced and justified against the fundamental human right (to free movement). Although Carens points out, as a caveat, that rights aren’t absolute, the weighing metaphor that Carens invokes is misleading. Although, of course, all restrictions ought to be justified and balanced (otherwise the state is engaged in wholly arbitrary actions), not all restrictions violate the right to free movement and the onus of justification is much different. On the view presented here, many rights, including the right to free movement, are sufficientarian in nature, and there is a significant role for the state in providing a framework in which the protection of basic autonomy is guaranteed, as long as that framework permits significant autonomous action and an adequate range of choices. Carens’s weighting metaphor, with arguments for restrictions on the one hand and the violation of a fundamental right to free movement on the other, is quite different from the sufficientarian understanding of the right, which suggests that restrictions on liberty of course have to be justified in the sense that there must be reasons to restrict one’s liberty, but that not all restrictions constitute a violation of free movement, and that the weight of justification is much reduced. Distributive (In)justice There is, however, a more pressing cosmopolitan criticism of border controls from a justice direction, namely, that they exacerbate inequalities and so are inimical to global justice and the violation of people’s basic rights to subsistence or to live a decent life. This criticism, I will argue below, has some teeth, and I will discuss its plausibility and limitations.

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In his argument for open borders, Carens does not rely solely on the argument considered above, viz., that restrictive borders violate a right to free movement. He also argues that “only in a world of open borders that we could meet the requirements of global distributive justice with respect to both opportunities and outcomes.”40 The idea here is that many people in the world live inadequate lives – they are impoverished, under-nourished, and with few opportunities. We do not need to suppose that the affluent world caused their poverty and lack of opportunity. Nevertheless, these people may still complain that a world divided up between territorially organized political units, which prevent people from crossing borders and improving their situation, is morally illegitimate. It exacerbates inequality or deprivation, because it prevents them from taking courses of action that could remedy this situation. This is a criticism, not of particular immigration restrictions, but of the territorial ordering of the world into political communities with discretionary power over entry. Note that here the claim cannot simply be that there is no right because the consequences of acting on the right are bad, viz., that selfdetermination over territory exacerbates inequality. If political communities are entitled to make decisions about their collective life, to exercise jurisdictional authority, then, it seems that political communities have this entitlement regardless to some extent of whether the exercise of the right would result in sub-optimal consequences. Rather, the claim here must be that the exercise of territorial right itself violates the moral rights of people. A stronger version of the argument would say that people have a right to a decent life, and included among these are subsistence rights. This means that, while territorial rights or immigration policies do not need to be designed to optimize welfare, or to equalize welfare, or promote equality, it is a source of serious moral concern if they jeopardize people’s basic rights. There are of course different understandings of people’s basic rights, but here I will follow Henry Shue in arguing that people have basic or fundamental rights to life, liberty, security, and subsistence.41 On Shue’s view, in addition to basic rights to liberty and to security, there is a basic right to subsistence. This is because

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people cannot fully enjoy any right if they lack the minimal essentials for an active and healthy human life. In part three of this chapter, I argued that state territorial right is justified in terms of people establishing justice and making decisions to govern their collective life together. Control over immigration, or borders generally, is, then, justified as an extension of jurisdictional authority and (like jurisdictional authority) in terms of the moral value of collective self-determination. However, there are important limits to territorial right: although political communities ought to have jurisdictional authority to determine the rules according to which they govern themselves, including rules concerning membership in the community itself and terms of entry, these must be consistent with the basic rights of all, and this represents an important limit on the exercise of jurisdictional authority. What does it mean for collective self-determination (over immigration) to be justified if it is consistent with the basic rights of everyone? First, the exercise of collective self-determination is not necessarily inimical to basic subsistence rights. Indeed, it is itself important to achieve people’s basic rights to subsistence, because, through establishing rules of justice, people regulate their lives together which makes it possible for them to live better. They establish property and taxation regimes that are important for improving their economic well-being, both individually and collectively, and, especially, they develop processes and institutions to solve collective problems. Second, this account of the relationship between local and global justice obligations justifies the obligations that different political communities have to refugees. If people’s lives and liberties are threatened, they are entitled to a safe haven. States have an obligation to accept refugees until it is safe for them to return to their originating country. This idea is of course currently enshrined in the unhcr (1951) Convention on Refugees, which outlines the obligations of states with respect to refugees. Even if the interest that political communities have in collective self-determination means that they cannot accept many individual people seeking to improve their lot, they must still accept refugees. Since it is likely that countries adjacent to oppressive regimes

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do more than other countries to meet this obligation, other countries should strive to fulfill that duty too, by bearing some of the costs, and by accepting some refugees. Third, this argument also suggests that states have further obligations to outsiders, to ensure that their basic economic subsistence rights are met. Although there is some debate about the precise consequences of restrictive immigration, or the reverse – more permissive immigration42 – I think that we should concede the general thrust of this criticism: it is very likely that restrictive immigration policies have a deleterious effect on the achievement of basic subsistence rights of people in poorer parts of the world, because they prevent many individuals from seeking to improve their individual lives through migration to more economically advantaged parts of the globe.43 This is a good reason why a fairly open policy with respect to immigration in a market economy is optimal, for this allows people to move in order to improve their lives. Moreover, the property and taxation regimes in advanced market economies are consistent with the integration of people from many different parts of the world, with different cultures. There are still of course issues connected to control over the type and flow of immigration, consistent with the general justice-related aims of the society, and consistent with their general obligation to ensure the subsistence rights of all, but one would expect societies with greater capacity to accept large numbers of immigrants to do so. In capitalist (market) societies, permissive immigration policies tend to be in the interests of the receiving society and in the interests of the immigrants themselves, and steps can be taken, through compensation, to ensure that it is also in the interests of the sending society. There are, however, societies that are structured in such a way that they have less capacity to accept immigrants, or large numbers of immigrants, and where restrictions on immigration are necessary for the success of that particular collective self-determination project. Think here of need for rules or limits on immigration by the Uighurs or Tibetans against the possible influx of Han Chinese, who threaten to alter the very character of the project, and their ability to establish justice over their lives. Or think of agrarian or nomadic communities

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whose rules of justice and conceptions of property are at variance with the rules of more mobile, urban, and capitalist parts of the world, and inconsistent with rapid migration into the lands over which they have jurisdiction. In these cases, we could imagine that the implementation of local justice requires the adoption of fairly restrictive immigration policies. In these sorts of cases, this chapter has suggested that the basic rights of everyone to subsistence can be met through other means. Indeed, it seems likely that the redistribution of wealth and global development assistance are more effective means to address basis economic rights than simple migration. If a society admits fewer immigrants, it should undertake a larger share of responsibility (relative to its wealth) to ensure that subsistence rights are met through other means. But migration can also be a means to help the poor meet their basic subsistence. Therefore, I concur with Robert Goodin’s point that, “if rich countries do not want to let foreigners in, then the very least they must do is send much more money to compensate them for being kept out.”44 Although I have not employed the language of compensation, the policy prescription is essentially the same. On my view, people have a right to establish justice, and this must involve control over immigration. This must be consistent with the basic rights of people everywhere to subsistence. In many cases, this can be achieved in a number of ways, including high levels of immigration from poorer to richer regions, but also through mechanisms of global distributive justice and development assistance. The right to subsistence does not detail how exactly it should be dispensed and there are reasons to think that the interests in collective self-determination that political communities have gives them a prima facie right to control the terms of entry and exit. However, the exercise of territorial right must be made consistent with the basic subsistence rights of everyone, and in many cases, political communities can tolerate – indeed flourish with – far higher rates of immigration than they currently accept. They can exercise self-determination while ensuring that the material needs of people in poorer places are met, not only through fairer global rules regarding trade and investment, but also straightforwardly through redistribution from the rich to the poorer regions of the world.

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Conclusion In this chapter, I have examined two different conceptions of territorial right: the property right conception, implicit in libertarianism, and the jurisdictional authority conception, implicit in Kantian justice. I argued that libertarianism could not determinatively endorse open borders because its conception of territory, as a conglomeration of property rights, justifies the right to keep people off the territory. The jurisdictional authority conception of territory, with control over immigration as an extension of that authority, is a good account of state territorial right. However, the Kantian version of the jurisdictional authority conception fails to justify state control over borders, which is puzzling in that Kant is usually associated with a defense of the state. In part three of this chapter, I put forward an alternative justification of jurisdictional authority, which is grounded in the moral value of collective self-determination. This chapter argued that control over borders can be seen straightforwardly as part of jurisdictional authority, and that significant or robust forms of collective autonomy require the capacity to make choices or decisions over one’s border. This does not, mean, however, that political communities are entitled to treat prospective immigrants in any way they choose. Even if political communities have jurisdictional authority, rooted in their collective self-determination, and immigration rules are properly conceived as part of the exercise of this jurisdictional authority, these rules and policies (like all rules and policies) might violate fundamental or basic principles of justice. After all, since the account offered here is not a relativist one, I have to consider the possibility that restrictive immigration policies deny the moral rights of the people excluded. This chapter then considered two versions of this basic critique: one argues that border restrictions violate people’s right to free movement; the second considers the argument that border restrictions exacerbate inequality. The central idea of this chapter is that, through their political communities, people co-create the rules of justice that organizes their collective life together and this justifies the various dimensions of control

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that they exercise over territory (their geographical domain). Since this must be consistent with the basic rights of all, there are also important limits on the exercise of self-determination. Through examining the objections, the chapter then moves on to explain the obligations of political communities to refugees; argue for compensation to poorer states from immigration practices that make sending societies worse off; and a general predisposition in favor of high levels of immigration from poorer to richer parts of the world. There is however no direct entailment between the general right to subsistence and permissive immigration practices – since the right to subsistence can be met in other ways and permissive immigration might actually jeopardize local justice in certain cases.45 However, it certainly means that political communities are obligated to ensure that other means or additional means are in place to realize people’s basic rights to subsistence. These include fairer global rules concerning international trade and institutions, but also significant redistribution from the rich to the poorer parts of the globe. Notes 1 This view is consistent with the international law view of the state, which defines the state as a territorial entity. Under the 1933 Montevideo Convention on the Rights and Duties of States (Art. 1) states are defined as “entities with fixed territories (and permanent populations) under government control and with the capacity to enter into relations with other states.” Simmons, “On the Territorial Rights of States,” 321, note 5. 2 Simmons, “On the Territorial Rights of States,” 300–26. 3 “Territorial right” is typically viewed as implying a “cluster view” of right, which involves a cluster of claim-rights, liberties, moral powers, and immunities. This follows the typology developed by Wesley Newcomb Hohfeld, who distinguishes among different sorts of rights in terms of the normative relationships between right holders and the bearers of obligations. See Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, and Wellman, A Theory of Rights. For a good discussion of the ways in which this is analogous to property rights, see Hendrix, Ownership, Authority, and SelfDetermination, 38, and Honoré, Making Law Bind, 165–79. Although these

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rights are to some extent conceptually distinct – we might imagine an argument for jurisdictional authority that does not entail the second or third kind of right – I agree with Miller’s point that an adequate theory of territory should have an account of the inter-relationship between these different categories of territorial right (Miller, “Territorial Rights”). For cosmopolitan arguments in defence of open borders see, Abizadeh, “Democratic Theory and Border Coercion,” 37–65; Carens, The Ethics of Immigration, Oberman, “Immigration as a Human Right.” For an excellent overview, Fine, “The Ethics of Immigration.” Abizadeh, “Democratic Theory and Border Coercion,” 37. Brock, Global Justice; Carens, “Open Borders and the Claims of Community.” Carens, “Open Borders and the Claims of Community,” 8. See also Lomasky and Téson, Justice at a Distance, ch. 4. An exception is Ypi, “Justice in Migration.” Ypi’s account of “justice in migration” is not simply “a just immigration policy,” but attempts to unite the two elements of immigration and emigration. Her approach is also in marked contrast to the approach I adopt in this chapter because she does not consider collective rights (e.g., democratic rights or state rights). Instead, she frames the problem in terms of a question of individual justice, considering both prospective migrants and the people impacted in sending and receiving societies. Indeed, she sets aside the argument pursued in this chapter by arguing that the idea that the state has a discretionary “right” is a “communitarian view,” which, along with libertarianism, is viewed as an unacceptable “extreme.” She writes: “At the extremes of the debate on immigrant admission we find those in favour of a nearly absolute individual right to freedom of movement and those in favour of a nearly complete discretion of the members of historical political communities to make decisions on who to admit and who to exclude,” 396). Against this, I argue in this chapter that the view of the state as having collective rights doesn’t mean that the state has absolute or general discretion, for one could also think that its discretion is limited by individual rights (e.g., rights to freedom of movement, freedom of association, subsistence rights, rights to be free of persecution, etc.), and it doesn’t mean that territorial right has to be held by members of “historic” political communities, rather than conceived of as the legitimate exercise of democratic authority. Following Nine, “A Lockean Theory of Property,” 157, I argue that territorial rights can only be justified as a system of rights. Locke, The Second Treatise of Government, 16. Ibid., 33.

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12 The interpretation of Locke relies on Simmons, “On the Territorial Rights of States,” 312. 13 Simmons, “On the Territorial Rights of States,” 313. 14 Ibid. 15 The attachment issue is dealt with more neatly in the Lockean account than the one I advance in part three, which requires subsidiary principles. The mere fact that a self-determining people need to have territory in order to exercise robust forms of self-determination doesn’t show that they have a right to that particular territory. 16 Steiner, “Libertarianism and the Transnational Migration of People,” 91. 17 Simmons, “On the Territorial Rights of States,” 313. 18 For a discussion of consent and political obligation, see Simmons, Moral Principles and Political Obligation, and Wellman, “Liberalism, Samaritanism, and Political Legitimacy.” For critical views of consent, see Moore, “Indigenous People and Political Legitimacy,” and Buchanan, Justice, Legitimacy and Self-determination, 243–9. 19 Cara Nine has also argued, I think persuasively, that it is unclear how Lockean individuals give up meta-jurisdictional authority, viz., the right to create or alter jurisdictions, including geographical jurisdictions. See Nine, “A Lockean Theory of Territory.” 20 Hillel Steiner, who develops an otherwise persuasive version of the individualist Lockean theory of territorial rights, is aware that if territorial rights are established on the basis of voluntary consent of individual property holders, it cannot justify the conventional view of territory. But he argues: so much the worse for the conventional view. Steiner writes: “precisely because a nation’s territory is legitimately composed of the real estate of its members, the decision of any of them to resign that membership and, as it were, to take their real estate with them is a decision that must be respected.” Steiner, “Territorial Justice,” 144. 21 This point is similar to that made by David Miller against Hillel Steiner’s deontological theory, which purports to derive principles from a rule vesting each person with a right to equal freedom. Miller points out that the Lockean and Kantian (deontological) elements in Steiner are in tension. Here, I make a similar point with respect to the libertarian position with respect to territorial rights and migration. See Miller, “Property and Territory.” 22 Lomasky and Téson, Justice at a Distance, 2. 23 Ibid., 19. 24 Ypi, “A Permissive Theory of Territorial Rights,” and Stilz, “Why Do States Have Territorial Rights?”

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25 Kant, “The Metaphysics of Morals,” 137–8. 26 Ibid., 133. 27 One attraction of the Kantian view for cosmopolitans is that it is very useful for egalitarians. This view is consistent with jurisdictional authority as we know it, where taxation is not subject to a particularly high justificatory hurdle (as it is on the Nozickean view that “all taxation is theft”) and where we think of different legitimate authorities (e.g., France, Denmark, Canada, etc.) as having different rules embedding different property rights, but the state is nonetheless regarded as legitimate. 28 Miller, “Property and Territory,” 104. 29 Kant, “Perpetual Peace,” 106. 30 Ibid., 105. He terms this the “cosmopolitan right of universal hospitality.” 31 We could also reasonably disagree on the relative level of decentralization or unity in the state, or on the desirability of a presidential or parliamentary or other system, or on the best, or most just, way to apportion votes into seats (representational allocation). 32 Although I cannot provide a full account of this here, I have argued elsewhere that the rules and practices that regulate society are just when they are consistent with the basic principle of non-domination, which involves ensuring that they are derived from relations in which no party is dominated. This view draws on a principle of non-domination, understood as a relational principle, to govern intra- and inter-group relations. Non-domination is at the core of both just relations within particular societies, and just relations between societies. On this view, what makes collective self-government so valuable, so important, is precisely that, through it, a people can co-create and implement justice amongst themselves, free from outside domination. The most famous recent exponent of this principle is Pettit. See Pettit, Republicanism; Pettit, “Agency-Freedom and Option-Freedom”; and, Pettit, “A Republican Law of Peoples.” However, Pettit does not view this principle as a basic principle of minimal justice, as I do here. His account is also deficient in a number of respects, but it is, I argue elsewhere, capable of being extended to respond to these problems. For a critique of Pettit’s account, Skinner, “Freedom as the Absence of Arbitrary Power,” and Hayward, De-facing Power. For an argument with similar intuitions to my own, see Young, “Selfdetermination as Non-domination.” See also Lovett, “Cultural Accommodation and Domination.” 33 See here Abizadeh’s opening premise in “Democratic Theory and Border Coercion,” 37–8. 34 Simmons, “On the Territorial Rights of States,” 300.

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35 This example might suggest to some that I have in mind cultural groups rather than political groups. This is not true. My concern is with groups that seek to exercise political self-determination over the conditions of their existence. It just so happens, in the modern world, that many of these also share cultural or linguistic traditions, which probably help to support their sense of themselves as a group, but this cultural or linguistic heritage is not necessary to my argument, and I am not arguing that cultural or ethnic homogeneity is morally valuable and should be preserved. Rather, the argument is limited to the claim that political communities need to control dimensions of entry and exit to have meaningful control; and most of the examples of such aspirant political communities that lack such control are ethnic or national groups that seek to be collectively self-determining. I am also assuming the further idea that such groups have a legitimate claim to the territory within which they are self-determining, and, depending on how the legitimate claim is fleshed out, it may include or exclude cultural groups. For the purposes of this argument, however, I do not flesh out or rely on a particular account of how the group can come to have a legitimate claim to a particular piece of territory. 36 See Economist, “China’s Uighurs: A Train of Concern,” 12 February 2000. 37 Moore, A Political Theory of Territory, 188–221. 38 Carens, “Open Borders and the Claims of Community.” 39 Taylor, “What’s Wrong with Negative Liberty?” 40 Carens, “Open Borders and the Claims of Community.” 41 Technically, Shue does not refer to “human rights” but to a moral minimum conception, defined as “the least that every person can demand and the least that every person, every government and every corporation must be made to do” (Shue, Basic Rights, 19). 42 Before I detail the way in which this sets limits on the territorial right, let me first address a prominent concern raised about this argument: this is that it assumes that open borders will improve the situation of the worst off, but that is not obviously true. Indeed, there is some evidence that the most disadvantaged are the least likely to emigrate, and are quite likely to suffer adversely from migration. This point has been made by Kapur and McHale, “Should a Cosmopolitan Worry about the Brain Drain?,” 307–38. Their empirical work has studied the devastating effect of the brain drain on sending countries. They cite some shocking statistics: three quarters of Ghanaian doctors who graduated between 1985 and 1994 left the country within the ten years following graduation. There are more Malawian doctors in the city of Manchester than in the whole of Malawi, which is a country ravaged by aids , and facing an acute physician shortage. And in many parts of Africa, there is a serious

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nursing shortage, mainly because the vast majority of trained nurses have left for the developed West. This is not, Kapur and McHale emphasize, simply a shortage in a key area. The exit of the educated middle class – people with social capital – for richer regions of the world is devastating for the country as a whole, because these are precisely the class of people who elsewhere have been crucial to economic development. The richest and best educated are also less likely (than poorer or less educated migrants) to send remittances back to their country of origin. 43 I am not here extrapolating current data about immigration effects to their effects under a much different sets of institutional arrangements. It is probably true, as Anna Stilz argues, that women with dependents, the aged, and the ill would be less mobile, and less likely to immigrate to a new country, even under less restrictive immigration policies. However, a straightforward extrapolation is deeply problematic. The current policies of countries like Canada, the uk , and Australia target well-educated people with much-needed skills. It’s very difficult to show that the same effects would follow a different kind of immigration regime, especially one that did not discriminate in this way, but was truly welcoming of “huddled masses.” See Stilz, “The Exclusion Project.” Indeed, McHale and Kapur argue that an immigration policy that permitted a large number of temporary work visas to poorer individuals would be helpful to global development and to providing a greater number of opportunities to live a decent life for larger numbers of the global poor. I will assume that they are right about this, and that such a scheme could be designed in such a way to avoid an underclass of dominated workers and that some of the most deleterious effects that Kapur and McHale cite with respect to the brain drain could be mitigated by compensation to the sending country, which, after all, invested its resources in the education and training of workers that they then lose to richer parts of the world. 44 Goodin, “If People Were Money,” 9. 45 This paradox is discussed by Ypi, “Justice in Migration.”

Part Three Political Disagreement and Toleration

Chapter Eight Political Obligation, Fairness, and Involuntary Benefit Neil Hibbert Introduction A central theme of Richard Vernon’s book, Cosmopolitan Regard, is the problem of justifying particularized political obligations. He offers a compelling approach based on iterative agreement on securing cooperative benefits by forming a political association and in setting up regulative principles for subsequent associative practices. In so doing, Vernon argues that while society is justified in enforcing contributory obligations to avoid free-riding, there are a number of grounds on which the cooperative benefits afforded by a political society can be reasonably rejected by some members, thereby freeing them from contributory obligations. Three grounds in particular are suggested as reasonable for withholding contributions to the production of cooperative benefits: principled objection to the good in question (e.g., a pacifist’s objection to supporting the military); objection to the justificatory grounds of a good’s collective provision in general cases (e.g., the rugged self-reliant individualist’s objection to the paternalism thought to be involved in certain social services); and, objection to priorities (e.g., objection to levels of spending on generally accepted goods).1 An issue that arises with this position is the fact that some of the core cooperative benefits secured by states, and that mark association as an efficient move from a non-cooperative baseline (the move from what Vernon calls the condition of “isolation” to “association”), are public goods. One notable feature of a public good is that it is non-excludable, which means that persons cannot be prevented

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from receiving it, either through the efforts of others or themselves. Non-exclusion raises two important concerns of fairness in a theory of political obligation. The first is that all persons sharing some jurisdictional space receive public goods whether or not they contribute to their provision, raising the concern of free-ridership, and the breakdown of collective action. The second concern is that persons who might have reasonable grounds for rejecting a public good, perhaps those suggested by Vernon, are likely to be compelled to contribute as part of combatting free-riding, raising the fairness concern of imposing obligations through benefit conferral. These two concerns of fairness in involuntary benefit receipt raise a troublesome dilemma for theories of political obligation: persons can either receive cooperative benefits without incurring the burdens involved in their production, or persons can have obligations foisted upon them to contribute to the provision of public goods they do not want, or perhaps even perceive as beneficial. This chapter examines how public good provision challenges theories of political obligation that involve commitments to the ideas of fairness and acceptance. The first section presents how fairness theorists of political obligation have attempted to incorporate elements of consent or acceptance into their accounts in order to address the concern of imposed obligations through benefit provision. The following section extends this presentation to how public goods challenge the incorporation of acceptance, and presents a critique of some compelling attempts of reconciling possible non-acceptance with receipt of public goods. Building on these arguments, the final section outlines an account of a possible role of fairness in theories of political obligation that comes in at an earlier and more general procedural level of legitimating cooperative institutions. This has the effect of diminishing concerns of fairness in particular cases of public good provision. Fairness and Acceptance in Theories of Political Obligation Enforcement of political obligations to contribute to the provision of collective benefits is often justified by appealing to the principle of fairness. The contemporary expression of fairness theory begins with

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a short passage from H.L.A. Hart’s essay “Are There Any Natural Rights?’” in which he claims that, “when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefitted by their submission.”2 The idea was picked up and developed subsequently by John Rawls who, in A Theory of Justice, grounds political obligations in the fair distribution of the benefits and burdens of social cooperation and argues that “we are not to gain from the cooperative labours of others without doing our fair share.”3 The foundation for political obligations in fairness theory is the rights of members who have submitted to the requirements of cooperative rules to reciprocal performance from others receiving cooperative benefits.4 The normative weight of this idea comes from the putative unfairness of a situation in which non-cooperators benefit from the compliance of others – free-ridership – such that the latter are justified in compelling non-cooperators to contribute so long as they enjoy the cooperative benefit. Fairness thus appeals to the normative requirement of “mutuality of restrictions” in a legitimate political society.5 An explicit element of Hart and Rawls’ formulation of the fairness argument for political obligations is the absence of agreement on, or voluntary acceptance of, the received cooperative benefits that motivate the requirement of mutual restriction of liberty. This has led to the argument that fairness theory generates a subsequent unfairness in how it imposes obligations onto persons. Critics argue that the lack of agreement in fairness theory permits the problematic imposition of obligations (and compulsion) by unilaterally bestowing benefits – as Robert Nozick puts it, “one cannot, whatever one’s purposes, just act so as to give people benefits and then demand (or seize) payment. Nor can a group of persons do this.”6 In this regard, unilateral benefit conferral comes closer to the moral logic of gifting than of mutual exchange (of liberties for benefits).7 While unsolicited gifting may properly exert certain kinds of what Vernon calls “moral pressures” to behave in “morally appropriate” ways (e.g., expression of gratitude), these lack “political salience” by virtue of falling short of being suitable objects of enforceable reciprocal requirements.8

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In response to this line of critique, fairness theorists have attempted to incorporate the requirement of some form of acceptance, or at least accounting for the moral force of acceptance (or reasonable rejection), of benefits into their theories. Agreement can be explicit consent or, alternately, consent inferred from the behaviour of persons in relation to a particular cooperative benefit. Explicit agreement would be some positive statement of endorsing the production of a cooperative benefit. Perhaps more likely is the case of inferred acceptance through use, or “enjoyment,” leading to a scenario in which one is rightly obligated to contribute to its provision through compliance with the rules stipulating the required contributions.9 If, instead, one actively avoids use or enjoyment of a benefit, then non-acceptance is inferred and one is not obligated to contribute, and cannot rightly be compelled. So, it might seem, fairness theory can avoid the force of Nozick’s critique by inserting the requirement that in order to generate obligations, the receipt of benefits must, in some sense, be voluntary. A fair distribution of cooperative burdens would track the pattern of the acceptance of cooperative benefits. The problem that emerges with this addition of acceptance is that it only makes sense in the case of the production of “excludable goods,” i.e., goods that non-contributors can be prevented from enjoying, or from free-riding on the “submission” of others to the conditions needed for their production (e.g., a fencedoff well). However, many foundational cooperative benefits that are constitutive of the idea of a political society itself are of the nonexcludable variety such that non-cooperators cannot be prevented from enjoying the benefit (either by their own volition or by steps taken by those cooperating) and contributors are thus perpetually vulnerable to free-riding. Non-excludable cooperative benefits therefore dramatically disrupt the voluntary acceptance modification of fairness theory that was undertaken to avoid the imposition of obligations through the “thrusting” of benefits problem. As Richard Arneson puts it, in the case of non-excludable benefits “there cannot really be any voluntary acceptance or enjoyment of the benefit (since) one cannot voluntarily accept a good one cannot voluntarily reject.”10 There is, in other words, no opt-out option available in the provision of nonexcludable public goods.

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Fairness and Public Goods Public goods are a unique form of cooperative benefits because we receive them by virtue of being in a particular jurisdiction or area whether or not we want – or contribute to – them. As such, accepting or rejecting would seem to do little work in addressing either side of the involved fairness dilemma (free-riding and obligation impositions through unilateral benefit conferral). A. John Simmons is somewhat unique in holding the view that non-excludable goods can be accepted or not, thereby preserving the receipt/acceptance distinction. If this is so, then persons who receive non-excludable benefits (what Simmons calls open benefits) can nevertheless not accept them, and so be free from the relevant obligations. In the case of excludable benefits, acceptance can be inferred from the act of “trying to get (and succeeding in getting) the benefit.”11 This, however, clearly does not apply in the case of non-excludable benefits. In such cases, Simmons argues, we accept the benefit when we receive (or “take”) it “willingly and knowingly.” The result of this possibility is “to significantly reduce the number of individuals who receive open benefits, who can be taken to have accepted those benefits.”12 Ascertaining “willingly and knowingly” involves inquiry into the subjective perspectives of those receiving benefits. The dimensions of this include, Simmons suggests, that we cannot see the benefits as being imposed on us, that we hold the view that the benefits are worth the costs required to secure them, and that we are aware that the benefits in fact result from cooperation or coordination in order to “accept” them. If the idea of accepting or rejecting public goods is plausible, this is good news for fairness theory as it preserves the normative force of acceptance in binding persons to obligatory requirements. It does, however, inevitably confront the hard to get around fact that those who do not accept non-excludable benefits in the described ways still receive them, unlike the case of those who choose to not accept excludable benefits. As such, the concern of unfair free-riding remains in place, since, as Arneson puts it, “several of the goods standardly supplied by state authority … are such that all citizens within a given territory must consume pretty much the same amount.”13 Given this fact, he

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argues that Simmons’ subjective requirements for acceptance are “too stringent,” in that what would seem to be an otherwise obligationgenerating situation of benefitting from others’ cooperation falls apart because of subjective misunderstandings of the links between mutual compliance and benefit production. The production of non-excludable public goods therefore seems to inevitably confront the issue of freeriding, and it is such situations that motivate fairness concerns. With this scenario, cooperating members of a political society are faced with three choices: cease production of the non-excludable benefit, permit free-ridership, or coerce non-contributors.14 The first option of stopping production of the benefit is highly problematic, as the core functions of modern states often fall into the category of non-excludable goods that create conditions of possible free-ridership (internal and external security are paradigmatic, as are other regulatory functions such as environmental controls). The option of ceasing production of such goods essentially ends the problem of grounding political obligations in states by virtue of eliminating many of the core functions of states themselves, to the extent they are understood to consist of these constitutive functions. So if the concern is to legitimate the functioning of states as we know them today, the principal issue facing fairness theory is navigating the choice between illegitimate coercion of non-acceptors and permitting free-ridership. On Arneson’s understanding, the principle of fairness requires coercing non-cooperative benefiters of public goods in cases where the free-rider problem is most likely to emerge. Such cases he argues are relatively restricted as many public goods are too trivial to “justify the imposition of coercion” (e.g., the visually pleasing sight of a well-dressed person in public).15 To identify cases in which the freerider problem is present and justifies coercion of unwilling cooperators, Arneson presents six required conditions: (1) there is cooperative provision of a public good to a group; (2) the benefit is greater for all members of the group than the costs; (3) the costs are fairly distributed; (4) coercion is needed to ensure performance; (5) each member finds contributing to be somewhat burdensome; and, (6) there are no incentives for extra-contributions (e.g., the incentive of a person

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to plough the snow for an entire residential street because the street is a dead-end and she lives at the end of it). If these conditions are in place, each individual member of the group is better off not contributing and so is at risk of engaging in “free-rider reasoning.” And, “where free-rider conduct is possible there obligations arise, under the principle of fairness, prohibiting such conduct.”16 With respect to the concern that “mere receipt of benefits may suffice to obligate” might run roughshod over countervailing concerns of the fairness involved in creating obligations by imposing unwanted benefits on otherwise unwilling cooperators, Arneson stresses that the cases that satisfy the six conditions in which benefit receipt triggers enforceable obligations are relatively small in number, and limited to the constitutive functions of states. By way of addressing problematic forms of imposed obligations via benefit conferral, the conditions that give rise to problematic free-ridership, and thus justified coercion, are, he argues, “stringent and suffice to guarantee that the principle of fairness will not be an engine of justification of endless regimentation.”17 There are two concerns with Arneson’s application of the principle of fairness to the involuntary receipt of public goods. The first concerns the actual scope of cases that give rise to “free-rider reasoning.” As discussed, Arneson addresses the concern of “endless regimentation” imposed through the conferring of public goods by developing a rather “stringent” set of conditions that give rise to obligations of compliance. A result of this stringency, however, is that it leaves many standard functions of modern states outside the scope of political obligation, an issue that Vernon calls the asymmetry problem in theories of political obligation.18 The asymmetry problem arises when the theoretical terms of justifying political obligations do not cover the full range of state functions that a theory of political obligations aims to cover, leaving some contributory requirements beyond the scope of obligatory performance. Given that the aim of a theory of political obligation is to establish the authority of states as such, fairness theory, when constrained to the narrow set of circumstances identified by Arneson, leaves significant portions of state functioning beyond the principle of fairness. This is problematic as a standard requirement in a theory of

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political obligation is one of “generality,” or the capacity to establish the requirement of obligatory compliance for all members of a society to obey the commands issued by a state. The flip side of this issue of scope is that it is also likely to be the case that Arneson’s conditions for cases in which receipt of public goods triggers obligations to the risk of free-ridership are more limited than suggested. Arneson holds that such cases must involve the provision of a public good that “is uncontroversially a benefit.” Arneson does not provide a systematic discussion of what goods fall into the category of what he explicitly takes to be a limited number of benefit-provision cases that trigger obligations, beyond offering certain examples, such as “national defence and safety from epidemic disease.”19 Even core public goods such as national defence, however, are likely to prove controversial, both as such and the form of the provision (e.g., the pacifist’s objection). To stabilize justified compulsion of contributions to core public good provision some further principle is required for restricting the liberty of non-contributors to opt out. One possibility is George Klosko’s idea of “presumptively beneficial goods” that are required for one to lead an “acceptable life” from the perspective of the “ordinary conditions of human existence” that would be refused only from irrational grounds.20 While retaining the desired stringency, this conception of obligation-generating benefits also faces significant issues of asymmetry. Another possibility of “uncontroversial” is Rawls’ idea of the primary goods that are tied to a broader conception of ends than living an “acceptable life.” Primary goods are not linked to a generally acceptable life considering the conditions of human existence as such, but to pursuit of ends that are particular to the advanced social life permitted by the sorts of states a theory of political obligation is meant to apply to. Rawls argues that the primary goods are uncontroversial in the sense of being necessary means for the pursuit of any end.21 The concept of primary goods addresses the issue of asymmetry but potentially at the cost of “uncontroversial.” Take the example of education. One could decide to not value education and forgo the ed-

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ucational opportunities offered by the state (Will Kymlicka gives the example of the rejection of advanced secondary education by Amish communities22). Even if this freed that person from the costs, while she would not receive the direct benefit of being educated, she would receive the quite significant benefits of the sorts of societal development enabled by an educated populace (e.g., “safety from epidemic disease”). Or one could agree that education is uncontroversially beneficial but have a strong preference for a different form of provision than that which is currently in place (e.g., subsidized private education versus publicly provided education). There may, then, very well be a core set of uncontroversial cases of public goods that cannot be rationally declined but these leave in place significant asymmetry between the theory of political obligation and the actual functioning of modern states. There are grounds for expanding the scope of included goods but the further the asymmetry problem is closed the more controversial different goods, and different forms of their production and allocation, becomes. As Russell Hardin puts it, it is in the move from “certain easy cases to more complex and yet commonplace problems that the notion of political obligation may lose its supposed mooring in individual interests.”23 This tension ties back in to Arneson’s treatment of Simmons’ view of the possibility of “willingly and knowingly” receiving public goods as a signal of genuine acceptance (and the other side of genuinely rejecting what are otherwise received benefits). Arneson argues that it is not permissible that what is an otherwise obligation-generating situation can fall apart based on the subjective limits and misunderstandings of the link between compliance and benefit production – e.g., the view that national defence is “manna from heaven.”24 Persons, he holds, have the responsibility to gain an understanding of the basic facts of the nature of social cooperation. But the expanded view of the provision of public goods that are susceptible to free-riding brings in other more persuasive grounds for non-acceptance beyond subjective shortcomings of the recipients. While the provision of such goods benefit persons compared to a case in which they are not provided, raising the

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issue of free-riding, significant grounds exist for rejecting them, raising the subsequent issue of fairness in obligation through benefit thrusting. Such goods are inherently controversial on a number of fronts. Take the example of public efforts to address addiction to hard drugs. Here, like in the case of education, one could conscientiously object and view this is as an unbeneficial provision (e.g., because the liberty trade-off is too great) while still benefitting from the policy (fewer property crimes, lowered public health costs, and so forth), raising the prospect of free-ridership through conscientious objection. Alternately, one could accept the goal of limiting hard-drug addiction, while disagreeing with the form of the benefit production in good faith, rather than subjective misunderstandings. Indeed one could, for example, prefer a harm-reduction medicalized/treatment approach to a criminalist approach in such a way that could indicate rejection of supporting the incarceration of drug addicts. As Hardin puts it, “am I obligated to contribute to our collective provision if I strongly prefer a different collective provision? One cannot simply answer this query with a claim that I am better off with the provision we have than with none. One must be able to say why I should be bound by a provision that is for me, and perhaps a very large group of others, inferior to what we could achieve with an alternative provision that similarly would make everyone better off than they would be with no provision.”25 In light of reasonable types of objection to the receipt of more controversial public goods, it seems that Arneson’s standard is overly strict and is unfair towards the beliefs and interests of those with reasonable grounds for rejection. But the challenge remains that rejected public goods are still received, and free-ridership is a concern of fairness from the perspective of cooperators, such that some standard of reasonable rejection is required to ground obligations in the case of public goods. One notable approach to establishing such a standard is found in Klosko’s fairness theory of obligation.26 His is more sensitive to the legitimacy of potential grounds for rejecting public goods than is Arneson’s, while maintaining that in most cases receipt of public goods triggers obligations through the principle of fairness. Klosko’s treatment of involuntary benefit addresses the potential unfairness

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of imposing obligations through the provision of “unwanted benefits.” Unlike Arneson he leaves open the possibility of rejecting public goods that one nevertheless receives, in a way that could free one from a fairness-based obligation to contribute. Allowing space for rejecting public goods, however, raises the issue of what Klosko calls “insincere rejection” in cases where a person wants a good, does not want to incur obligations for its production, but knows she will receive it nonetheless.27 Possible rejection of public goods thus creates problematic incentives for persons to hide their “actual preferences.” To address this concern, Klosko presents a twopart test for rejecting public goods. The first part is that rejection must be sincere, in the sense that the good is genuinely seen as unbeneficial. The second part is that the rejection is reasonable.28 The two parts run together as the sincerity of the rejection is tested by its reasonableness. The standard of reasonableness places the justificatory burden on the rejecter, rather than the provider, of public goods; to be reasonable, a would-be rejecter of a public good must be able to “demonstrate that he could lead an acceptable life without it.”29 The requirement of explaining how we could live without the good in question is what Klosko calls the “alternative test.” Taken together, “in an institutional context, if (one) declares to the relevant authorities that he does not want particular presumptive goods that he is going to receive anyways … this declaration must be sincere … (and) it is likely that he would be required to make a convincing case for his position.”30 If the requirement of reasonableness cannot be passed by virtue of satisfying the alternative test by explaining how one could lead an acceptable life without a particular public good, the sincerity of the rejection is undermined and the prospective rejecter is rightly obligated to contribute as a matter of fairness to other cooperators. Klosko’s standard for rejecting public goods in a manner that results in being freed from obligations to contribute to the production of benefits that one nevertheless receives is an attempt to reconcile possible forms of unfairness in large-scale forms of cooperation: respectively, free-riding and imposing obligations through unwanted benefit conferral. It aims to bring to non-excludable goods the distinction

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between receipt and acceptance that is morally salient in cases of excludable goods. While demanding, the sincerity via reasonability test permits, as a matter of fairness, one to reject (and so not to contribute to) the provision of goods that one receives. One concern with this approach is that Klosko’s account of rejecting public goods raises questions concerning whether or not it is compatible with maintaining the structure of a fairness theory of obligation, generally understood. First, it is not altogether clear what work the principle of fairness as such is doing, and the possibility of making a sincere and reasonable case for rejecting the obligations associated with producing cooperative benefits seems to bring the theory into close contact with “consent” theories, the standard objections to which motivate the theory of fairness. Klosko holds that the appeal to reasonable rejection or acceptance of public goods to motivate fairness concerns does not reduce the theory to consent. He maintains, against this implication, that obligations themselves flow from the fact of receiving benefits. Persons who receive benefits are obligated in the first instance, and then encounter the burden of explaining why they do not require goods that are presumptively beneficial. In consent theory, political obligations pre-exist benefit reception – one agrees to accept the authority of a command-issuing and -enforcing regime that enables cooperative benefit production. It does, however, seem rather closer in structure to a theory of tacit or hypothetical consent, in which consent is inferred from “enjoying” public goods (by, for example, walking on a sidewalk). In this case, our acceptance is inferred tacitly from our behaviour, and we are left with the further option of offering grounds for sincerely and reasonably rejecting a good we enjoy. In addition to potentially slipping away from the structure of a fairness theory, in which obligations flow from the fact of receiving benefits from a political authority rather than consenting to one, Klosko’s modification of fairness theory to address the problem of involuntary benefit, also calls into question whether or not it remains a theory of political obligation, as its structure is normally construed. The idea of a political obligation is a particular reason to comply with the commands of the state or of law – we comply because the state is authoritative. The two unique features of authoritative commands are that

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they are content-independent and peremptory reasons for acting. They function, in this regard, to exclude consideration “by the hearer of the merits pro or con of doing the act.”31 Obligations to act that flow from authoritative commands, as Leslie Green puts it, “break the link between deliberation and action, to make compliance not conditional on the results of deliberation about the merits.”32 Set against this, Klosko’s opportunity for sincere and reasonable rejection of public goods appears to permit significant deliberative discretion insofar as we engage in an exchange of reasons with state officials about the merits of different cooperative benefits. The reasons for compliance that flow from this deliberative exchange seem to be neither content-independent nor peremptory. Klosko’s theory is also vulnerable to Vernon’s asymmetry critique of theories of obligation that are meant to be general. Arneson’s fairness theory aims to justify obligations to contribute in cases of “uncontroversial benefit.” This standard addresses the concern of unfairness in imposing obligations through benefit conferral by significantly circumscribing the range of goods unwilling persons can be coerced into contributing to the production of. The cost of this approach to avoiding “unlimited regimentation,” it was argued above, is that it leaves substantial areas of public good provision outside the scope of political obligation, raising issues of generality. Klosko’s possibility of sincere rejection leaves the range of public goods that could be covered by fairness theory more open – goods that Klosko holds are “presumptively” rather than “uncontroversially” beneficial. It avoids the problem of unfair obligation imposition through benefit conferral by leaving open the possibility of rejecting received goods, rather than circumscribing upfront the range of goods covered by the principle of fairness. The burden is on the recipient to explain why she does not need a presumptively beneficial good.33 This burden is set against the backdrop of the central idea of fairness that receipt of goods generally requires reciprocal contribution. This leaves, initially at least, the scope of benefits covered by fairness theory as more or less general. Vernon’s problem of asymmetry, however, comes in at a different point under Klosko’s theory, i.e., the post-sincerity test stage. In the case of Arneson’s “uncontroversially beneficial” public goods, the

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sincerity test is unlikely to be passed by potential objectors. That is, it is hard to imagine a case in light of the “alternative test” in which persons could successfully explain how they could live an acceptable life without core goods provided by the state, such as national defence or law and order. The standard gets markedly less difficult to satisfy once we move away from these core goods, as many functions that most advanced states perform are not necessary from the perspective of an “acceptable life,” and are more in line with leading a comfortable, convenient, or even pleasurable life. The category of goods that we may be able to live without and still have an acceptable life Klosko refers to as “discretionary goods.” In such cases, the issue of asymmetry seems to confront Klosko’s theory of grounding political obligation in fairness as persons are able to engage in sincere and reasonable forms of obligation-freeing rejection of a range of discretionary goods. One possible way to patch up the asymmetry produced by possibly rejecting discretionary goods is to establish the dependency of presumptively beneficial goods on discretionary goods. In this respect, obligations for discretionary goods are piggybacked on obligations flowing from presumptive goods. According to Klosko, in the provision of the core public good of national defence, there is a “practical indispensability of certain discretionary public goods,” including “extensive government involvement in transportation and communication, heavy industries, education and other aspects of society.”34 Obligations grounded in the provision of core public goods can therefore be extended to the “basic social infrastructure, the individual components of which are not themselves presumptively beneficial.”35 This certainly extends the scope of discretionary public goods that cannot be rejected if a presumptive good that is dependent on their provision is accepted. And yet, there remain a good deal of the functions performed by modern states that cannot, at least straightforwardly, be tied to the provision of core public goods, such as national defence. Klosko addresses this in the case of social welfare provisions to the “hungry,” “homeless,” and “destitute.”36 Socioeconomically advantaged persons may have no interest in public protections against these sorts of risks and vulnerabilities, and so may sincerely and reasonably reject them in

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an obligation-freeing manner. In these cases, Klosko piggybacks the provision of social welfare, and the resultant “social stability and harmony” on the provision of “law and order,” thought to be a presumptive public good that cannot be sincerely and reasonably rejected. While piggybacking discretionary goods on the provision of presumptive goods is an effective strategy in addressing asymmetries of obligation that result from allowing sincere and reasonable rejection of some cooperative benefits, at some point the strategy breaks down. This could happen in cases where no convincing case can be made of “practical indispensability”; where levels of provision as it is tied to “practical indispensability” are in dispute (e.g., the extent of publicly provided education for stable national defence or the extent of social welfare provision needed to maintain social order); or, as discussed above, when disagreement exists over the form of provision. Here Klosko refocuses the site of political obligation away from the provision of any particular public good towards the more general value of a stable state. He argues that compliance in general with “laws falling outside the core range is indirectly good in itself because it works to strengthen presumptively beneficial law and order.”37 This comes down as a largely instrumental ground for political obligation, appealing to the need of a stable state and the role that its citizens understand it as authoritative, and that its commands are “considered binding,” in securing stability. While there are many types of reasons one might support and comply with one’s state, the claim here is that states that receive support because their commands are “considered binding” will be more stable than cases of other grounds of adherence. The argument for obligatory compliance has moved from a moral claim regarding the nature of persons’ relationship to political authority to an empirical claim regarding the sources of political stability. On the whole, politics is more stable when people behave from the belief that their states’ commands are binding, and less so when people behave from non-obligatory motives such as expedience, prudence, or custom. In Honore’s view, the discretion before the law that comes from rejecting the idea of political obligation would damage the stability of political societies in deep ways because in difficult cases, where the burden of

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proof lies will be crucial in determining a person’s course of action.38 If compliance is seen as discretionary, non-compliance may frequently be the chosen course, whereas if compliance is seen as obligatory, then persons will be more likely to conform. Broadening the focus of political legitimacy to the authority of the state taken generally is appropriate insofar as a successfully functioning state is a pre-condition for the provision of any particular collective good, and thus comes in before consideration of reasonable grounds for rejecting or accepting in specific instances. There are, however, significant implications in making this move for theorizing political legitimacy at this level of political practice for the idea of political obligation. These, discussed in the following section, do not so much settle the concerns of fairness in the provision of particular public goods as diminish their significance in a theory of political legitimacy. Political Obligation and Political Stability One concern with linking political obligation to the general value of political stability is that it is not altogether clear that it is true that states require this sort of authoritative relationship with their members to remain stable. In large states, non-compliance with various regulations neither harms the interests of other persons directly, or their indirect interest in living in a stable state; as Vernon puts it, the impact of any particular individual’s non-compliance is “negligible” on the overall stability of a state.39 Nor is it likely that persons in stable states hold the kind of obligatory beliefs thought to be required for stability, particularly in cases of victimless non-compliance. Barry asks, who would “seriously maintain that he or she has ever stopped drinking in a pub at 10:40 pm (assuming that the landlord is prepared to go on serving) out of respect for the licensing laws rather than out of fear of possible unpleasantness with the police”?40 Prudential reasons such as in this case ideally lead to supportive customs and habits that produce sufficient compliance to diminish the need for threats of force. In addition to prudential and customary forms of motivation, in cases of non-compliance that harm the interests of specific individuals, one hopes the fact of illegality does not add much by way of

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force to persons’ motivation. Ideally, few of us do not harm others for the primary reason that it is against the law. The motivation for compliance, such as it is, more clearly flows in this case from a natural duty of justice, and is not strengthened by further reflection on the status of one’s political obligations. Nor is a particularly strong justification owed for enforcing such acts (including by otherwise illegitimate states). Requirements of non-harm and motives of natural justice also extend to regulations pertaining to distinctly institutional interests, particularly those in not having contributions to public good provision free-rode upon. Such regulation in a reasonably just society at a general level is best seen as providing content to one’s baseline for considering concerns of reciprocity in how different types of conduct might affect the interests of others. This ties in to the idea of securing sufficient systemic support, as persons who place sufficient value on a reciprocal system of politically secured cooperation refrain from interfering in its administration in specific cases where they might prefer a different form of, or no, collective provision. As Charles Taylor puts it, “a society has legitimacy when members so understand and value it that they are willing to assume the disciplines and burdens which membership entails.”41 And yet this type of attitudinal legitimacy likely hinges in part on perceptions of fairness in the general operation of a system of cooperation. If one’s interests are continually thwarted, perceptions of unfairness can undermine acceptance of legitimacy. Thus, this line of critical analysis of political obligations does not entirely diminish the problem of securing support and stability in a political society marked by both significant political “regimentation” of socioeconomic life and by significant disagreement over what types of collective benefit are to be pursued, and how. There are various and strong reasons as to why persons might be reluctant to contribute, which raise ongoing problems of normative legitimacy for states in coercing potential sincere and reasonable rejecters who continue to find themselves on the losing side. Theories of political obligation aim to pre-empt the import of the issue of disagreement by establishing content-independent reasons for obeying authoritative commands. In the case of fairness theories of political obligations, these reasons flow from receipt of the cooperative

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gains produced through others’ submission, however motivated. As discussed, at a certain point this runs up against a countervailing concern of fairness in imposing obligations through benefit conferral. In cases of excludable benefits, this can be dealt with through rejection and non-receipt. In cases of non-excludable goods, however, rejection still entails receipt, such that the two forms of unfairness (free-riding and imposition of obligation through unwanted benefit conferral) come into contact. In Klosko’s theory, the burden is on the would-be rejecter to explain to the “relevant authority” the sincere and reasonable grounds of rejection. If the case is convincing, one can be freed from the requirement to contribute to a benefit one nevertheless receives. This approach to grounding legitimacy in cases of disagreement over benefit type and form, however, sits ill at ease with the argument for political obligation as a general condition of state stability that works to patch up the problem of asymmetry. As discussed above, beyond the core goods needed for an “acceptable life” that would be difficult to sincerely and reasonably reject by offering alternatives, there are a wide range of public goods that could be rejected on this standard. Setting up a “relevant authority” to which persons could make their case for rejecting goods they may otherwise receive, or enjoy the benefits of, would have the effect of producing fragmented relationships between persons and the cooperative institutions of their political society, in which they might go about their evaluation on a good-by-good, rejecting some, accepting others, potentially changing their minds over time. Successful cooperation, however, requires creating significant levels of assurance amongst cooperators that others will reciprocate their submission. The “assurance problem” is challenged by permissible rejection of received public goods, potentially leading to breakdowns in cooperation. There are many goods that persons could reject, while leading an acceptable life, that are nonetheless key to the functions performed by modern states. If allowing rejection of the sort Klosko proposes destabilizes advanced cooperative schemes, the background concern of linking obligation to the value of a stable state leads to the concern of justifying coercion in the case of ostensibly unwilling cooperators. Addressing this concern requires backing up to a more general place where legitimacy concerns come in. Rather than focusing on

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behaviour and attitudes after the production, and receipt, of cooperative benefits (i.e., when, on Arneson and Klosko’s view, the prospect of free-ridership emerges), legitimation concerns the kind of background institutional structure that regulates the full range of functions of a cooperative scheme. When there is legitimacy there, questions of legitimacy do not arise in the case of particular outcomes. Barry calls this form of general procedural legitimacy a type of “justification in abstraction from outcome.”42 In such cases, we are motivated by what we take to be the beneficial consequences of legitimate governance “over and above (particular) outcomes.” The concern of fairness in the decision-making procedures by which a political society settles the type of cooperative benefits it will secure, and the form of their production, underpins the legitimacy of enforcing contributions from dissenters. Cohen argues that legitimacy holds when “one’s interests are given due consideration, both in the processes of authoritative decision-making, and in the content of those decisions.”43 The reason for this consideration flows from the ideal of treating persons with equal respect in the operation of political institutions. But, as Ripstein puts it, respect does not amount to “deference,” and failing to coerce dissenters “would allow (them) to set the terms of (their) interactions with others unilaterally.”44 Doing so would undermine the idea of reciprocity that grounds the justification of fair procedures that give all persons’ interests “due consideration” in the prior instance. The animating force of fairness theories of political obligation is the rejection of the view that “coercion is legitimate only when unnecessary”45 – the view, that is, that only those who agree with and accept a particular benefit, can have their contributions legitimately enforced. Conclusion Setting up institutional mechanisms by which members of a political society can make the case for opting out of contributing to the provision of public goods they might wish not to see provided, or see provided in different forms, fits awkwardly with concerns of political legitimacy and political obligation that are ultimately rooted in the

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general concern of stability. Doing so produces fragmented types of relationships between members and their authoritative institutions and between each other that might be expected to undercut the ideas of reciprocity and assurance the reinforce acceptance and support for institutions. The provision of cooperative benefits depends on the complex interaction of many different types of institutions and goods, such that our obligations in systems of mutual advantage should be treated as corresponding to the structural whole of a political society, rather than piecemeal. It is for this reason that theories of political obligation strive for generality across a population and symmetry between the functions performed by states and the obligations held by all those subjected to them. Theorizing the principle of fairness at the operation of decision-making procedures (and as general constraining principles on their outcomes) aligns better with this orientation of political obligations, than at a good-by-good level of provision. Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Vernon, Cosmopolitan Regard, 44. Hart, “Are There Any Natural Rights?,” 185. Rawls, A Theory of Justice, 112. Arneson, “The Principle of Fairness,” 619. Klosko, “Fairness Obligations and Non-acceptance of Benefits,” 160; Arneson, “The Principle of Fairness,” 616. Robert Nozick, Anarchy, State and Utopia, 95. Arneson, “The Principle of Fairness,” 618. Vernon, “Foreseeably Unforeseeable Risk.” Locke, “Second Treatise of Government,” 64. Arneson, “The Principle of Fairness,” 619. Simmons, Moral Principles and Political Obligation, 132. Ibid. Arneson, “The Principle of Fairness,” 619. Ibid., 617. Ibid., 621. Ibid., 623.

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17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45

Ibid., 633. Vernon, Cosmopolitan Regard, 41. Arneson, “The Principle of Fairness,” 619. Klosko, “Fairness Obligations and Non-acceptance of Benefits.” Rawls, A Theory of Justice, 54. Kymlicka, Contemporary Political Philosophy, 238. Hardin, “Political Obligation,” 108. Arneson, “The Principle of Fairness,” 632. Hardin, “Political Obligation,” 117. Klosko, “Fairness Obligations and Non-acceptance of Benefits.” Ibid., 163. Ibid., 164. Ibid. Ibid., 168. Hart, Essays on Bentham, 253. Green, The Authority of the State, 59. Klosko, “Fairness Obligations and Non-acceptance of Benefits,” 161. Klosko, The Principle of Fairness and Political Obligations, 87–9. Ibid., 88. Ibid., 91. Ibid., 103. Honore, “Must We Obey?,” 39–61. Vernon, Cosmopolitan Regard, 40. Barry, “Is Democracy Special?,” 41. Taylor, Reconciling the Solitudes, 64–5. Barry, “Is Democracy Special?,” 25. Cohen, “Minimalism About Human Rights,” 328. Ripstein, “Coercion and Disagreement,” 351. Ibid., 357.

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Chapter Nine Is Moral Compromise Feasible? Friderike Spang It seems that compromise is one of those values both necessary and impossible.

Avishai Margalit, On Compromise and Rotten Compromises

Introduction This quote from Avishai Margalit1 expresses the dilemma that motivates this chapter: if compromise is indeed both necessary and seemingly impossible, this is a cause for concern.2 However, while the necessity of compromise is increasingly acknowledged in political theory, the question of its feasibility is seldom explicitly addressed. The necessity of compromise is often justified with reference to its role in resolving moral disagreements that emerge naturally in pluralistic societies.3 By resolving moral disagreement, compromise contributes to avoiding potential social strife, violent protest, or even war – all of which are possible consequences of unresolved moral disagreement. Furthermore, it has been argued that compromise is necessary for avoiding stagnation in political decision-making. Political stagnation can easily result from unresolved disagreements, which is particularly problematic because political stagnation oftentimes preserves an unjust status quo.4 Finally, compromise is considered to be appropriate for accommodating reasonable disagreements, because it does justice to the fact that all sides to a disagreement have – at least from their own point of view – good reasons for their respective position.5

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While we might intuitively agree that compromise is necessary in pluralistic societies, Margalit’s impression that compromise seems to be impossible might be counterintuitive. After all, why should we think that compromise is impossible if it is so significant for social peace and justice? If we are aware of the benefits of compromise in terms of avoiding war and injustice, it stands to reason that we are also motivated to compromise. I argue that while intuitively plausible, this view is mistaken. Instead, Margalit has a point in indicating a potential feasibility problem for (moral) compromise. I suggest that the feasibility problem for moral compromise is based on a powerful emotional reluctance towards compromising on moral values. This emotional reluctance, which I call “affective aversion,” is likely to overshadow the voice of consequentialist reasoning that might speak in favour of compromise. I argue that affective aversion tends to be our default position towards moral compromise, which potentially reduces its feasibility. I use the qualifier “potentially” because affective aversion can be addressed with the proper antidote. This antidote, I suggest, is an affective attitude of respect that we experience for each other by virtue of being fellow human beings. In the second section, I develop the notion of affective aversion with reference to research in cognitive science on moral judgment formation. In the third section, I assess the implications of affective aversion for two dominant normative conceptions of compromise, principled and pragmatic compromise. I argue that moral compromise is more likely to be realized if it is motivated by principled instead of pragmatic reasons. This means that even if we agree that compromise can only be justified for pragmatic reasons,6 our motivation to realize moral compromise in practice has to be based on principled reasons. The Affective Aversion to Compromise In this section, I develop the argument that our attitude towards moral compromise tends to be characterized by an affective aversion to compromise on moral values. The term affective aversion does not merely

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designate the idea that it is hard to sacrifice one’s values. Rather, the affective aversion to compromise is fundamental in that it results from the emotion-based, and to a large degree non-conscious, process of moral judgment formation. The process of moral judgment formation is important in this context because moral disagreement is constituted by (conflicting) moral judgments. Thus understood, moral disagreement is essentially a cognitive phenomenon: we have a moral disagreement on, say, abortion or immigration policies, if we have conflicting moral judgments about whether abortion is morally right or wrong or whether immigration policies should be guided by liberal or conservative concerns. In this sense, compromise is about accommodating the conflicting moral judgments of the parties to a disagreement. To resolve moral disagreement, then, compromise-oriented strategies must take into account the psychological complexity of moral judgment formation. In what follows, I use research in cognitive science on moral judgment formation as a foundation for developing the notion of affective aversion. It should be noted that two kinds of moral judgment are relevant in the context of compromise. The first kind of judgment pertains to concrete moral issues such as abortion, immigration, the environment, or animal rights. Conflicting judgments on such issues constitute moral disagreement. The second kind of judgment pertains to the decision on whether or not to compromise on the first kind of judgment. We might think of the first kind of judgment as “first-order judgments” and of the second kind of judgment as “second-order judgments.” As I will show, second-order judgments (on whether or not to compromise) are inherently linked to the emotional basis of first-order judgments on specific moral issues. Emotional Primacy I develop the concept of affective aversion in line with the growing consensus in cognitive science that moral judgments emerge primarily from emotional processes. While the list of researchers who endorse

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this view is long,7 I focus in this chapter on three well-established approaches to moral judgment formation: Jonathan Haidt’s Social Intuitionist Model,8 Joshua Greene’s Dual Process Model,9 and Jesse Prinz’s Constitution Model.10 To start with, the “emotional primacy” in moral judgment formation has been prominently articulated in Jonathan Haidt’s Social Intuitionist Model, according to which moral judgment is based on intuition by default.11 A moral intuition, according to Haidt, emerges from automatic and non-conscious processes. This means that we are not aware of the processes that lead to an intuition, but only of the intuition as such, which we experience as an “affective valence,” such as a feeling of liking or disliking.12 Unlike moral intuitions, moral reasoning is considered to be slow, effortful, and conscious. However, Haidt argues that rather than contributing to genuine judgment formation, moral reasoning serves primarily to justify the judgments that we have already made intuitively. Haidt labels this phenomenon post hoc reasoning.13 Since we cannot identify the non-conscious processes as the source of our judgments, we refer instead to cultural norms and values to develop post hoc justifications for our judgments. As an example, consider a person – let us call her Ava – who believes that abortion is morally wrong. We might think that Ava holds this view because she believes (among other things) that life begins at conception. However, according to Haidt, Ava’s moral judgment would be better understood in the following way: based on a variety of external (e.g., cultural) and innate (e.g., evolutionary) influences, Ava has developed the intuition that abortion is wrong. She then contrives the post hoc reason that life begins at conception in order to justify her intuition.14 The emotional primacy in moral judgment formation is supported by considerable empirical evidence.15 For example, one study found that a large majority of study participants continued to condemn a fictive case of consensual incest between two siblings, even after the experimenters were able to refute all of the participants’ specific objections. Eventually, the study participants justified their condemnation

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with reference to their emotions, stating that they just feel that incest is wrong.16 Given the empirical evidence and the increasing consensus in cognitive science on emotional primacy in moral judgment formation, this chapter proceeds from the assumption that moral judgment formation is best understood in terms of emotional primacy. Deontological Primacy Based on neuroscientific research on moral judgment formation, Joshua Greene has formulated a dual process model of moral judgment formation, according to which moral judgment can be based on both automatic emotional processes and controlled reasoning processes.17 Greene claims that depending on which of the two processes a judgment is based, the judgment will emerge as a deontological or as a consequentialist judgment. More specifically, Greene claims that automatic, emotional processes tend to support deontological judgments while controlled reasoning processes tend to support consequentialist judgments. He calls this the “central tension principle.”18 In Greene’s conception, deontological judgments are characterized by a concern with rights and duties, while consequentialist judgments are characterized by a concern with the consequences that a moral judgment entails. At this point, one might wonder if the weighing of consequences does not involve emotional processes as well. After all, how can we evaluate the harms and benefits of a specific judgment if we do not experience some kind of emotional feedback? If emotional feedback is necessary for consequentialist judgments, does it make sense to say, as Greene does, that consequentialist judgments are based on reasoning processes? Greene addresses this concern by pointing out that controlled reasoning also involves the emotions.19 But, according to Greene, controlled reasoning processes involve a different kind of emotions than automatic processes. In this context, he differentiates between emotions that are “alarm-like” and emotions that are “subtle.” Alarm-like emotions are like powerful commands that tell us “Don’t do it!” or

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“Must do it!”20 The alarm-like kind of emotions is involved in automatic processes, which tend to cause deontological judgments. In contrast, subtle emotions are more like a “currency” for weighing the pros and cons of a decision. They tell us “such-and-such matters this much. Factor it in.”21 The subtle kind of emotions is involved in controlled reasoning processes, which tend to cause consequentialist judgments. In this chapter, I understand the difference between reasoned and automatic moral judgment in accordance with the differentiation proposed by Greene. That is, reasoned judgment is understood to involve subtle emotions while automatic judgment is understood to involve alarm-like emotions. Now, if we accept both emotional primacy and the central tension principle, the logical consequence is what we might call a “deontological primacy.” That is, if moral judgment is by default based on automatic processes, in the sense that it is based on processes involving alarm-like emotions (emotional primacy) and if automatic processes lead to judgments that tend to be deontological (central tension principle), then, by consequence, moral judgments tend to be deontological by default. In the context of moral disagreement, deontological primacy means that those involved in a disagreement will not necessarily opt for the solution with the best overall consequences. Instead, they will tend to act according to what they think is the morally right thing to do, even if that is in opposition to what is best for everyone involved in the conflict. What each person considers to be right will be based on their deontological perspective – which is oftentimes opposed to what might be considered to be right from a consequentialist perspective. Indeed, I claim that the divergence between deontological and consequentialist conceptions of what is right constitutes a crucial reason why moral compromise is so difficult to achieve. From a consequentialist perspective, compromise is the right thing to do if it leads to the best consequences, such as avoiding violent conflict or political stagnation. From a deontological perspective, however, the threat of violence or political stagnation is not necessarily considered to be a sufficiently good reason to compromise on what is (or what one considers to be) right. I explore this idea in more detail in what follows.

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Defending What Is Right: The Deontological Aversion against Compromise I suggest in the following that deontological primacy implicates an affective aversion to compromise. More specifically, I suggest that if we morally disagree with another person, we are likely to consider it our moral duty to defend our judgments against being compromised. In what follows, I develop an explanation of why we experience deontological primacy as a duty to defend – rather than compromise – our values. Jesse Prinz’s Constitution Model of moral judgment formation, and his conception of self-justifying judgments in particular, are helpful for understanding why deontological primacy constitutes a problem for the feasibility of moral compromise. Prinz’s Constitution Model holds that moral judgments are constituted by emotions. This means that what we believe to be right or wrong is determined by feelings of approbation or disapprobation respectively.22 Because they are constituted by feelings of approbation or disapprobation, moral judgments are self-justifying. More precisely, the feeling of approbation towards the values that we endorse in our judgments inherently conveys the impression that our judgment is justified.23 According to Prinz, the emotions that constitute a moral judgment convey a sense of moral rightness, because “emotionally grounded moral judgments have a kind of perception-like immediacy that does not seem to require further support.”24 In other words, when we make a moral judgment, we immediately experience a sense of rightness that is directed towards our own moral view and that negates the necessity for further justification. To illustrate this point, let us apply Prinz’s account of moral judgment to the example of Ava discussed earlier. According to Prinz’s model, if Ava holds the moral judgment that abortion is wrong, she believes at the same time that this judgment is justified because the feeling of approbation that constitutes her judgment also conveys a sense that her judgment is right.25 These considerations allow us to understand why deontological primacy implicates an affective aversion to compromise. In a situation

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of moral disagreement, the felt deontological duty to do what is right translates into a duty to defend our moral judgment against being compromised, because we emotionally associate our judgment with moral rightness. For this reason, I argue, the second-order judgment on whether or not to compromise is intrinsically linked to the emotional basis of first-order judgments: the feeling of moral rightness that is inherent in first-order judgments emerges also at the level of secondorder judgments – namely as the distinct impression that we must not compromise on what we feel is the right moral position. This means that the second-order judgment on whether or not to compromise will likely be in favour of defending rather than compromising on our values. The concept of affective aversion indicates that compromise is a very demanding strategy for resolving moral disagreement. Moral compromise requires that we sacrifice some of the values that we consider to be right and concede to the implementation of values that we believe to be wrong. Crucially, we believe the respective values to be right and wrong not merely at the (conscious) level of reasoning, but also at the (non-conscious) visceral level with all its motivational force. Differences in Experiencing Affective Aversion I suggest that affective aversion is our default position towards moral compromise. This is so because affective aversion results from the emotions on which moral judgments are based by default. However, it is noteworthy that different persons will likely differ in the degree to which they experience an affective aversion to compromise. I propose that two factors are particularly decisive for determining the strength of affective aversion. First, the degree of aversion will depend on the stakes that are involved for the parties to a disagreement. As Scott Atran and Jeremy Ginges point out, the stakes are especially high if the contested values are “fused” with one’s identity. For example, they studied individuals that strongly identified with either a pro-life or pro-choice position on abortion and found that “the greater the fusion with those values,

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the greater the willingness to take extreme action.”26 Their findings show that the higher the stakes involved, the stronger the urge to defend one’s values – and thus, I submit, the stronger the aversion to compromise. A second factor that determines the strength of affective aversion pertains to individual differences in “visual” or “verbal” cognitive styles. A visual cognitive style is “inherently concrete” while a verbal cognitive style involves a high level of abstraction.27 That is, visual cognition is concerned with concrete images while verbal cognition is concerned with abstract meaning.28 Eleanor Amit and Joshua Greene found that a pronounced visual cognitive style supports deontological judgments while a pronounced verbal cognitive style supports consequentialist judgments.29 Amit and Greene explain this result by pointing out that individuals with a pronounced visual style are more concerned with the means, rather than the ends, that a moral decision entails. Importantly, the focus on means implies a focus on the concrete implications of a specific moral decision, such as the harm that is to be done in order to achieve a certain goal. Applied to moral compromise, these findings suggest that when deciding on whether or not to compromise, individuals with a pronounced visual cognitive style will focus on the means necessary to achieve a compromise. This implies that the very idea of a moral compromise is met with an aversive mindset because the means necessary to achieve a moral compromise inherently entail the sacrifice of moral values. Individuals with a pronounced visual cognitive style are therefore likely to experience an increased aversion to compromise because they focus on the harmful means that are required to achieve a compromise rather than on the beneficial ends that can be achieved by a compromise. Vice versa, individuals with a pronounced verbal cognitive style tend to focus on the ends or consequences rather than the means of their decision.30 This means that individuals with a verbal cognitive style tend to experience a weaker aversion towards compromise because they focus on the beneficial ends that a compromise can achieve rather than on the sacrifice that a compromise requires.

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Note that according to my argument, individuals with both verbal and visual cognitive styles will experience an affective aversion to compromise. This is so because affective aversion is based on emotional primacy, which applies to first-order judgments independent of whether someone has a visual or a verbal cognitive style. Different cognitive styles rather make a difference with regard to the second-order judgment on whether or not to compromise on a particular first-order judgment. That is, different cognitive styles make a difference with regard to whether (and to what degree) the emotional basis of firstorder judgments translates into a compromise-aversive attitude at the level of second-order judgments. More specifically, I suggest that different cognitive styles can make a difference for the strength of affective aversion in second-order judgments, because verbal and visual cognitive styles imply a difference in focus. As indicated above, individuals with a pronounced visual cognitive style tend to focus on the required sacrifice of moral values (meaning that they focus on the very source of affective aversion), while individuals with a pronounced verbal cognitive style tend to focus on what makes compromise desirable: the positive consequences in terms of avoiding conflict and strife. In sum, I suggest that affective aversion will be experienced more strongly in individuals who have high stakes in a moral conflict and who have a pronounced visual cognitive style. And conversely, affective aversion will be experienced less strongly for individuals who have lower stakes in a moral conflict and a pronounced verbal cognitive style. However, while theoretically a combination of “low stakes and verbal cognitive style” would increase the feasibility of moral compromise, it would be irresponsible to count on that combination to characterize those involved in a moral disagreement. Indeed, usually it is precisely because the parties to a moral disagreement experience the stakes to be high that the disagreement requires resolution in the first place: the higher the stakes in a moral disagreement, the greater the willingness to engage in violent conflict31 – and the greater the need for compromise.

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Implications for the Feasibility of Principled and Pragmatic Compromise Much of the debate on moral compromise revolves around the normative question of whether compromise is justified for principled or for pragmatic reasons.32 In this section, I contribute to this debate from the perspective of feasibility. I claim that principled compromise is more feasible than pragmatic compromise. More precisely, I argue that if a particular compromise is normatively justified – whether for principled or for pragmatic reasons – we are unlikely to realize that compromise in practice if we are motivated by pragmatic reasons alone. Instead, a principled endorsement of compromise that is based on mutual respect is more likely to provide a sufficiently strong counterweight to affective aversion. Why Pragmatic Compromise Is Unlikely to Be Feasible The term “pragmatic compromise” designates the normative view that we should agree to compromise only if we have pragmatic reasons to do so.33 According to Simon May, there is no intrinsic appeal to compromise, because compromise inevitably entails sacrifice: “The simple fact that compromise involves some moral loss, however small, stands as an undefeated reason against those moral compromises that are not pragmatically necessary.”34 We therefore should, according to May, only compromise if doing so is advisable from an instrumental perspective; for example, if a compromise is necessary for achieving important moral goals that we cannot achieve otherwise. According to a pragmatic conception of compromise, the desirability of compromise is to be evaluated with regard to consequences, not with regard to principles. I argue that even if we agree with May’s normative justification of pragmatic compromise, we cannot rely on pragmatic reasons in practice. Pragmatic reasons involve the kind of consequentialist judgment that is unlikely to motivate moral compromise, for two reasons. First, the consequentialist reasoning that underlies pragmatic reasons is not

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likely to counterbalance our affective aversion to compromise. This is so because consequentialist reasoning involves only the subtle emotions – but in order to counterbalance affective aversion, alarm-like emotions are more promising. I will elaborate on this point below. Here, it is important to recall that, according to Greene’s account of moral judgment formation, alarm-like emotions do not characterize pragmatic reasoning about consequences. Rather, alarm-like emotions characterize deontological reasoning, which, I have argued, implicates an aversion to compromise. Secondly, moral opponents might not even recognize the pragmatic necessity of compromise in its entirety. When we evaluate whether or not to compromise, the pragmatic reasons that we might develop are more likely to be based on post hoc reasoning rather than on genuine reasoning about the necessity of compromise. As post-hoc reasons, however, pragmatic reasons will tend to confirm rather than reduce the aversion to compromise. This claim is based on Haidt’s model of moral judgment formation as described earlier. According to Haidt, if we experience strong emotions towards an issue, reasoning takes the form of post hoc reasoning, which aims to confirm the rightfulness of whatever emotional experience we have.35 And in situations of moral disagreement, the salient emotion is likely an aversion to compromise. Therefore, even though we might think that we pragmatically compare the costs and benefits of a particular compromise, we are in fact – and under the radar of our awareness – developing reasons that support our intuitive aversion to compromise. We might, for example, search more intensely for reasons against a particular compromise, or we might weigh those reasons more heavily than the reasons that speak in favour of the compromise. I therefore claim that moral opponents are unlikely to compromise on moral issues if they are supposed to be motivated by consequentialist reasoning alone. The inefficiency of pragmatic reasons for motivating moral compromise is, however, largely underestimated in the literature on compromise. Recall Margalit’s counterintuitive claim that compromise is at the same time necessary and impossible. I suggest that

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underestimating the motivational inefficiency of pragmatic reasons explains why we might consider Margalit’s claim to be counterintuitive. If we assume that a (normative) pragmatic reason for compromise also constitutes a (practical) reason to compromise, we will plausibly find it counterintuitive to assume that people can fail to compromise for the sake of peace. In that case, we should indeed be puzzled by the reoccurring phenomenon that, as Margalit puts it, “rational agents [can] fail to reach an intermediary compromise point rather than end in a bloody war.”36 But the idea that compromise is both necessary and impossible is only counterintuitive if we assume that pragmatic reasons are sufficiently motivational for moral opponents to compromise. And, as I have argued above, this is very likely not the case. In sum, I propose that pragmatic compromise, i.e., compromise that is based solely on pragmatic reasons, is unlikely to be feasible because (1) pragmatic reasoning is characterized by subtle and not by alarmlike emotions (the latter of which, as I will argue in a moment, are more promising for reducing affective aversion); and because (2) pragmatic reasoning is likely to manifest as post hoc reasoning that supports our affective aversion to compromise. Rather than urging us to compromise then, pragmatic reasons are more likely to justify the emotionally salient aversion towards compromising on our values. In the following, I develop the argument that the feasibility of moral compromise increases if compromise is motivated by principled reasons of respect. Respect-Based Principled Compromise The term “principled compromise” designates the normative view that compromise can be justified by principled reasons. A principled reason for compromise that is frequently discussed in the literature is respect. For example, Richard Bellamy states that “deep compromises need not just to involve principles but also to be principled, showing mutual respect for the views of others.”37 In Bellamy’s conception, deep compromises aim to accommodate the concerns of others as a matter of principle and that principle is mutual respect. Similarly, Patrick Dobel claims that mutual respect “directs individuals to consider

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political compromises as the norm.”38 According to Dobel, respect can justify compromise for a variety of reasons. For example, compromise allows individuals to respect the legitimacy of their opponents’ claims or to empower underrepresented groups. A related defense of respect as a principled reason for compromise is developed by Daniel Weinstock, who argues that compromise constitutes a remedy to institutional imperfections regarding democratic respect. More precisely, Weinstock claims that compromise allows to “integrate the concerns of ‘losers’ in recognition of the fact that deliberative mechanisms often fail to embody full satisfaction of the principle of democratic respect and inclusion.”39 The argument from feasibility as developed in this chapter supports these accounts of principled compromise in the following way. According to a normative account of principled compromise, respect justifies compromise because compromise allows to (partially) accommodate all the conflicting positions. In this way, compromise provides an opportunity to express respect for persons with different moral views. According to a principled conception of compromise, a justified compromise therefore presupposes that the involved parties respect each other. A respectful attitude is, as I will show in the following, precisely the mindset that the argument from feasibility supports. To be clear, this chapter does not take a stance with regard to the question of whether principled compromise is preferable to pragmatic compromise in a normative sense. Rather, my argument is that principled compromise is preferable to pragmatic compromise in the practical sense that principled compromise is more likely to be feasible. That is, even if a compromise is justified for pragmatic reasons, we have higher chances to realize that compromise if we have principled reasons to compromise as well. Amy Gutmann and Dennis Thompson also advance the view that compromise is more likely if the disagreeing parties respect each other. More specifically, Gutmann and Thompson claim that mutual respect is an essential feature of a “compromising mindset,” i.e., a mindset that supports a general willingness to compromise. According to Gutmann and Thompson, respect is essential for a compromising mindset,

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because respect constitutes an antidote to the mutual mistrust that makes compromise oftentimes difficult to achieve.40 While I agree with their claim that compromise requires respect, I propose that respect has a more significant role to play than Gutmann and Thompson suggest.41 Even though I do not object to Gutmann and Thompson’s argument that respect is important to overcome mutual mistrust, I believe that respect can also serve the more important function to overcome affective aversion. In what follows, I first clarify what kind of respect is required for increasing the feasibility of moral compromise, and, based on the conceptual clarification, I proceed to explain why respect can increase the feasibility of moral compromise. What Kind of Respect Does Compromise Require? What kind of respect is required to increase the feasibility of compromise? The debate on principled compromise refers primarily to a form of respect that can be subsumed under the labels “appraisal respect” or “epistemic respect.” The notion of appraisal respect derives from Stephen Darwall’s differentiation between recognition respect and appraisal respect. Recognition respect designates a form of respect that concerns a person’s moral status as a human being while appraisal respect designates a form of respect that concerns a person’s qualities of character or behavior.42 With reference to Darwall’s conceptual distinction, May claims that recognition respect “has no bearing on principled compromise,”43 because disrespecting another person’s moral status constitutes an injustice that requires correction rather than compromise. Instead, May suggests that appraisal respect is conceptually more pertinent to compromise. As he puts it, appraisal respect is “the sense in play when it is argued that the value of respect generates principled reasons for moral compromise.”44 But May denies that moral compromise can be justified on the basis of appraisal respect because compromise is not the only way in which we can express respect for another person’s qualities of character (such as their reasonableness).

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In a recent critique of May’s argument, Weinstock defends the relevance of respect for justifying principled compromise. He makes use of an epistemic conception of respect, which holds that respect is due as a matter of respecting one’s epistemic peers. That is, if we acknowledge that our reasoning capacities are limited, we ought to respect that others might be as justified in their judgment as (we think) we are. We are then compelled to compromise with those we disagree with “not in virtue of their moral status as fellow citizens, as moral agents, as ends in themselves, or whatever, but in virtue of their status as knowers and as moral reasoners.”45 While Weinstock and May disagree about whether appraisal or epistemic respect can justify compromise, both seem to agree on a similar conception of respect to be relevant for discussing the justification of moral compromise. This is so because both appraisal and epistemic respect concern the reasonableness of moral opponents rather than their humanness. I suggest, however, that for the purpose of increasing the feasibility of compromise, a different conception of respect is relevant. The problem is that neither epistemic nor appraisal respect is likely to characterize the mindset of those involved in a moral disagreement. On the contrary, research suggests that rather than to acknowledge the reasonableness of our moral opponents, “we see those who disagree with us as biased and incapable of objective reasoning.”46 This speaks against the likelihood of epistemic or appraisal respect to emerge between the parties to a moral conflict. Rather, the very fact of disagreement will likely be considered to be a reason for epistemic disrespect. One reason why we tend to see our moral opponents as biased is our tendency to assume that however we conceive of the world (and of what is right and wrong) reflects an objective reality. If we are objectively right, then whoever disagrees with us must be wrong, or biased at the least. In this sense, we are “naïve realists.”47 This view of naïve realism is also in accordance with Prinz’s conception of self-justifying judgments that I have presented earlier. According to Prinz, “moral judgments are self-justifying because the emotions that we experience when we grasp those judgments are

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also responsible for making the judgments true.”48 This means that we mistake the feeling of approbation that constitutes a moral judgment to be reflective of an objective reality. Hence, because we feel that we are right, we assume that someone with an opposing moral view must be mistaken. This contradicts the assumption underlying appraisal or epistemic respect that we acknowledge the reasonableness of other people’s judgments even if these contradict our own moral views. I suggest that instead of appraisal or epistemic respect, a conception of feasible compromise must rely on the very notion of recognition respect that both May and Weinstock reject as a relevant form of respect in the context of moral compromise. Recognition respect, or so I propose, is more promising in the matter of feasibility because it does not require moral opponents to respect each other in virtue of what the other person thinks, but simply in virtue of being human. Recognition respect is therefore likely to persist in situations of disagreement where we disapprove of the other person’s moral outlook. That is, even if we disagree with someone on moral values that are important to us, we can still respect that person in virtue of being a fellow human being. In the following, I explain in more detail how recognition respect can increase the feasibility of moral compromise. How Can Respect Increase the Feasibility of Moral Compromise? The suggestion that a respectful mindset increases the feasibility of moral compromise is in line with the empirical work of Atran and Ginges, which indicates that displays of respect can increase the likelihood of compromise.49 However, according to Atran and Ginges, it is not yet clear why respect has this effect on the willingness to compromise. I propose the following explanation. In a nutshell, I propose that respect increases the willingness to compromise because it involves a shift of focus away from contentious moral judgments and towards the persons involved in a disagreement. This shift of focus makes moral compromise more feasible because drawing attention away from conflicting moral judgments means to draw attention away from the very source of affective aversion. The

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shift of focus allows us to engage with our moral opponents in their capacity as fellow human beings, rather than as persons that hold – in our view – severely mistaken moral views. One might object that it is not clear why we should assume that respect can shift our focus away from contested issues in the first place. Indeed, the question arises how this assumption would be different from assuming that consequentialist reasoning can shift our focus away from contested issues and towards desirable outcomes. Since I have argued that consequentialist reasoning is unlikely to be an effective counterweight to affective aversion, why would a respectful attitude be more effective? I argue that respect is more powerful in shifting the focus of attention because it is an affective attitude. By this, I mean that respect is not an attitude that we can just decide to have. Instead, respect is better understood as an attitude that is emotionally cultivated. This conception of respect as an affective attitude is similar to Karen Jones’s conception of trust as an affective attitude.50 Jones claims that because trust is affective, it cannot be adopted at will – but it can be cultivated if we focus on what makes us trust each other instead of focussing on reasons for distrust. Similarly, I propose that respect is an affective attitude that cannot be adopted at will, but that can be cultivated if we focus on what we respect in each other instead of focussing on reasons for disrespect. Why does it matter that respect is affective? The guiding idea here is that an unwanted emotion is best counterbalanced with an “opposite” emotion. This idea has been recognized by influential thinkers such as Baruch Spinoza51 or William James52 and is supported by recent research in psychology that emphasizes the importance of the emotions in influencing (moral) judgments and attitudes.53 In line with this research, I suggest that an effective remedy to the affective aversion to compromise is to cultivate an affective attitude of respect. As an affective attitude, respect also increases the feasibility of moral compromise because it is not subject to choice. That is, we cannot simply decide to feel respect or disrespect in concrete situations. More precisely, if we have cultivated an affective attitude of respect, we

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cannot suddenly decide not to feel respect for someone else, in case that we disagree with that person’s moral outlook. Still, one might object that my argument neglects the possibility that we might experience a strong emotional reaction (such as fear) towards the consequences of not compromising. When we think about the potential violence and destruction that might result if we do not compromise in a moral conflict, will we not experience a strong motivation to compromise, even on dearly held values? In that case, pragmatic reasons would constitute a powerful counterweight to affective aversion, which would question my earlier rejection of this claim. As intuitively plausible as this objection might seem, it is not justified psychologically. If Greene’s central tension principle is correct, thinking about consequences is inherently less emotional than thinking about means. This is so because the mental processes that we employ when we think about consequences do not involve the kind of alarmlike emotions that characterize our concern with means. A concern with consequences is therefore not likely to provide a sufficiently strong emotional counterbalance to affective aversion. This point is supported by further empirical research. Atran and Ginges have shown that in situations of moral conflict, thinking about consequences does not significantly influence decision-making, even if the consequences should be emotionally salient. For example, they found that even “the prospects of crippling economic burdens and huge numbers of deaths do not necessarily sway people from positions on whether going to war or opting for revolution is the right or wrong choice.”54 It therefore stands to reason that the affective aversion to compromise tends to persist despite the potentially terrifying consequences of not compromising. In sum, I suggest that respect, understood as an affective attitude that has been cultivated over time, is an emotion-based mental state that can guide our interactions with others independent of whether we disagree with their moral views. Therefore, even though we will still experience an affective aversion to compromise on moral issues, an affective attitude of respect makes moral compromise more feasible because it means that aversion is not the only behaviour-guiding

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emotion that we experience: having cultivated a respectful mindset, we also feel the pull of respect which, as a matter of principle, can lead us towards compromise. Conclusion This chapter has addressed the question of whether moral compromise is feasible. The second section has shed light on potential feasibility problems for moral compromise that emerge from the emotional basis of moral judgments (i.e., the very judgments that are the subject of moral compromise). With reference to research in cognitive science on moral judgment formation, I have developed the argument that we are likely to experience an affective aversion towards compromising on moral values. The third section has focused on the implications of affective aversion for the feasibility of principled and pragmatic compromise respectively. I have argued that pragmatic compromise is not likely to be feasible because the consequentialist reasoning on which it is based is unlikely to provide an effective counterweight to affective aversion. I have suggested that principled compromise, in contrast, can be feasible if it is motivated by an affective attitude of respect. The conclusion of this chapter therefore is that whether (and to what degree) moral compromise is feasible depends on whether we aim to achieve a respective compromise with reference to pragmatic or principled reasons. This also means that whichever conception of compromise we prefer from a normative perspective, in practice, we are well advised to endorse a principled conception of compromise. May claims that “a willingness to engage in … moral compromise is best understood as a healthy pragmatism in the pursuit of a basic humanist commitment.”55 Ironically, contrary to May’s claim, in practice, healthy pragmatism consists in principled rather than pragmatic reasons for compromise.

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Notes 1 Margalit, On Compromise and Rotten Compromises, 12. 2 The term “compromise,” as it is used in this chapter, refers to moral compromise specifically. In particular, this chapter is concerned with moral compromise in civil society, i.e., compromise between citizens with conflicting moral values. 3 Bohman, Public Deliberation. See also Bellamy, Liberalism and Pluralism. It should be noted that compromise “resolves” disagreement in a practical, not in an epistemic sense. In a compromise, the disagreeing parties continue to disagree epistemically, but they resolve their disagreement with regard to its potential consequences in practice, such as violent conflict. 4 Gutmann and Thompson, The Spirit of Compromise. 5 Bellamy, “Democracy, Compromise and the Representation Paradox.” See also Bellamy et al., “Introduction”; Weinstock, “A Neutral Conception of Reasonableness”; Weinstock, “On the Possibility of Principled Moral Compromise.” 6 May, “Principled Compromise and the Abortion Controversy.” 7 See, e.g., Greene et al., “An fmri Investigation of Emotional Engagement in Moral Judgment”; Damasio, Descartes’ Error; Damasio, Looking for Spinoza; Frijda, Manstead, and Bem, Emotions and Belief; Helion, Chelsea, and Pizarro, “Beyond Dual-Processes”; Johnson, Morality for Humans; LeDoux, The Emotional Brain; Lerner et al., “Emotion and Decision Making”; and Nichols, Sentimental Rules. 8 Haidt, “The Emotional Dog and Its Rational Tail.” See also Haidt, The Righteous Mind. 9 Greene, “The Secret Joke of Kant’s Soul”; Greene, Moral Tribes; Greene, “Beyond Point-and-Shoot Morality.” 10 Prinz, “The Emotional Basis of Moral Judgments.” See also Prinz, The Emotional Construction of Morals. Each model, obviously, takes a slightly different view on the relation between the emotions and moral judgment. The details in which each model differs from each other is, however, not of concern for this chapter. The important point is that all three models overlap in the core assumption that the emotions play a significant role in moral judgment formation; and it is this core assumption that is relevant for my argument. 11 It should be noted that Haidt’s research focuses on intuition rather than on the emotions specifically, while the argument presented in this chapter is about emotion, not intuition. That being said, Haidt’s research remains relevant for the purpose of my argument, since, in Haidt’s understanding, emotions and

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12 13 14 15 16 17 18 19 20 21 22 23 24 25

26 27 28

29

intuitions share important cognitive features. Hence, Haidt’s research on what he labels “intuition” is, to a significant degree, also research on the emotions. Haidt, “The Emotional Dog,” 818. Ibid. Ibid., 817. Greene et al., “An fmri Investigation”; Haidt et al., “Affect, Culture, and Morality”; Schnall et al., “Disgust as Embodied Moral Judgment”; Wheatley et al., “Hypnotic Disgust Makes Moral Judgments More Severe.” Haidt, The Righteous Mind. Greene, Moral Tribes. Greene, “Beyond Point-and-Shoot Morality,” 699. Greene, “The Secret Joke.” Ibid., 64. Ibid. Prinz, The Emotional Construction. Prinz, “The Emotional Basis.” Ibid., 37. It should be noted that, for Prinz, a moral judgment can be constituted by both a disposition to experience an emotion and by the actual experience of an emotion. Prinz distinguishes in this context between emotions and sentiments, where a sentiment is the disposition to experience an emotion and an emotion is the actual feeling of bodily changes. This means that I can sincerely claim to consider sexism to be wrong, without necessarily experiencing the “perception-like immediacy” of a disapproving emotion (e.g., anger) while making that claim. However, to sincerely hold the moral view that sexism is wrong, I will have to feel anger (or another disapproving emotion) at least in some instances when I am confronted with sexism. Otherwise, if I never feel disapproving emotions in the face of sexism, I cannot not truly hold the view that sexism is wrong. Atran and Ginges, “Devoted Actors,” 77–8. Amit and Greene, “You See, the Ends Don’t Justify the Means,” 862. For example, a person with a pronounced visual cognitive style will think of a chair in terms of a specific chair that she can envision in its particularities; e.g., a comfortable reading chair with soft, beige cushions, stable wooden legs, and broad armrests. In contrast, a person with a pronounced verbal cognitive style will think of a chair in terms of its general constituents, e.g., four legs and a seat. Amit and Greene, “ You See, the Ends Don’t Justify the Means.”

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30 Ibid. 31 Atran and Ginges, “Devoted Actors.” 32 Bellamy, “Democracy, Compromise, and the Representation Paradox”; Jones and O’Flynn, “Internal Conflict”; Weinstock, “On the Possibility of Principled Moral Compromise.” 33 May, “Principled Compromise.” 34 Ibid., 348. 35 Haidt, “The Emotional Dog.” 36 Margalit, On Compromise, 52. 37 Bellamy, “Democracy, Compromise, and the Representation Paradox,” 465; Jones, “Respecting Beliefs and Rebuking Rushdie,” 421. Peter Jones makes the interesting argument that respect for beliefs is ultimately respect for the persons holding the beliefs: “The ultimate objects of concern in the principle of respect for beliefs are not beliefs as such but the people who hold them.” I will argue later that for the purpose of achieving moral compromise, respect for persons rather than respect for beliefs is required. 38 Dobel, Compromise and Political Action, 80. 39 Weinstock, “On the Possibility of Principled Compromise,” 549. For a rejection of respect as a principled reason for compromise, see May, “Principled Compromise.” 40 Gutmann and Thompson, The Spirit. 41 My understanding of a “compromising mindset” differs from Gutmann and Thompson not only with regard to the precise function of respect, but also with regard to their notion of “principled prudence,” which they consider to be a second feature of a compromising mindset (ibid., 16). According to Gutmann and Thompson, a mindset that is characterized by principled prudence supports compromise if compromise is preferable to alternative options in terms of the consequences that each option entails. Principled prudence thus requires the kind of consequentialist reasoning that, as I have argued, is unlikely to prevail against affective aversion. I therefore disagree with Gutmann and Thompson’s claim that principled prudence is an essential feature of a compromising mindset. 42 Darwall, “Two Kinds of Respect.” 43 May, “Principled Compromise,” 340. 44 Ibid., 341. 45 Weinstock, “On the Possibility,” 547. 46 Kennedy and Pronin, “When Disagreement Gets Ugly.” 47 Ibid., 834. 48 Prinz, The Emotional Construction, 88.

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Atran and Ginges, “Devoted Actors.” Jones, “Trust as an Affective Attitude.” Spinoza, Ethics. James, The Principles of Psychology. Haidt, The Righteous Mind. Also, Lerner et al., “Emotion and Decision Making.” 54 Atran and Ginges, “Devoted Actors,” 71. 55 May, “Principled Compromise.”

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Chapter Ten Hate Speech, the First New Nation, and the Peaceable Kingdom Lockean Ideas in Canada and the United States Samuel V. LaSelva Introduction: Locke, Hate Speech, and Modern Constitutionalism “The story of modern constitutionalism,” Carl Friedrich wrote in 1967, the year of Canada’s centenary, “may in many ways be depicted as a great debate between American and British principles.”1 But with the Charter of Rights in 1982, things changed. Constitutional theorists took notice of Canada, because Canadians rejected British and American orthodoxies and experimented with new ideas.2 One example is the Charter’s notwithstanding clause which rests on an innovative theory of the relationship between legislators and judges. Another, the subject of this chapter, is the Charter’s free expression provision. When combined with the Charter’s reasonable limits clause and its equality and multiculturalism provisions, the theory of free speech under the Charter as articulated by Canada’s highest court differs significantly (because of the restrictions it permits) from many libertarian theories and especially from First Amendment free speech exceptionalism. “If there is any principle of the constitution that more imperatively calls for attachment than any other,” Justice Holmes wrote, “it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”3 Virtually unrestricted free speech, including the freedom of hate speech, is an iconic American idea. It may even be the first principle of American constitutionalism, which is often described as the world’s greatest experiment in freedom. But neither “freedom for the thought that we hate” nor any other

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freedom is Canada’s defining value, under the Charter of Rights or at Confederation, because the Canadian constitutional experiment is about the pluralism of values, about multiculturalism and multinationality, and about what keeps the Canadian mosaic together. What the Charter of Rights makes plain is that the Canadian experiment differs from the modern world’s two greatest constitutional experiments, one an experiment in freedom, the other in parliamentary sovereignty. But what is the significance of the difference and how is it to be explained? There is an orthodox answer to these questions that, in one of its versions, links Confederation and the Charter, and is outlined in two books by Seymour Martin Lipset. Lipset’s starting point is the United States and his primary objective is to explain American exceptionalism. He does this, in part, by placing it in a comparative perspective which includes almost the entire world in The First New Nation (1963) but focuses on the United States and Canada in Continental Divide (1990). Although Lipset’s analysis is many-sided with respect to American exceptionalism, it has a simple message for Canadians, summarized as “Still Whig, Still Tory.”4 According to Lipset, the American Revolution produced two nations: the United States as the country of the revolution with its (Lockean) commitment to “life, liberty, and the pursuit happiness”; and Canada as the country of the counterrevolution that, in 1867, expressed its (Tory) attachment to “peace, order, and good government” and its preference for monarchical institutions and British parliamentary sovereignty. “Unlike the United States,” Lipset writes in Continental Divide, “[Canada] finds little to celebrate: no revolution, no declaration of independence … Its first (1867) constitution … was the legitimating ‘document of the Canadian counter-revolution.’”5 The Charter of Rights moves Canada closer to the American model, but it does not, Lipset insists, alter the basic contrast. As “the first new nation,” Lipset concludes, the United States is a modern Whig or classically liberal or Lockean country; Canada, with its concern for order and unity, is a modern Tory or more statist or anti-Lockean country. The primary objective of this chapter is to reconsider the (alleged) foundational difference between Canada as Tory or anti-Lockean and

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the United States as Whig or Lockean by re-examining the debate about free speech and hate propaganda. The chapter questions the view that a rights-oriented and tolerant society of the kind celebrated by Locke will necessarily endorse virtually unrestricted free speech similar to American free speech exceptionalism. What makes this view contentious is Locke’s many-sided analysis in A Letter Concerning Toleration, which, in some of its arguments, supports restrictions on hate speech.6 Locke’s famous Letter necessitates a fresh look at free speech and, by implication, requires reconsideration of the larger issue of what is Lockean or liberal in Canadian and American constitutionalism. There is also a more global reason for reconsidering Locke, constitutional foundations, and (Lipset’s) Whig-Tory divide. One of the great themes of Locke’s Letter is religious pluralism which has significant parallels to what Charles Taylor has called “deep diversity” in the contemporary and international context.7 Pluralism as deep diversity is also an important theme of Confederation and it figures prominently in the leading Supreme Court decision on hate speech and multiculturalism under the Charter. Canada as a mosaic and pluralist experiment, this chapter argues, is closer to a Lockean experiment in liberal toleration and liberal constitutionalism than it is to a Tory experiment in counterrevolution. What remains highly visible, nevertheless, is a continental divide between Canada and the United States, illustrated poignantly by contrasting approaches of hate speech and sustained philosophically by different strands of Locke’s many-sided constitutionalism. Locke is the preeminent philosopher of freedom and individualism who had equally important ideas about pluralism, toleration, and community. American Exceptionalism and Lockean Constitutional Theory: The Debate within the First New Nation The place to begin, however, is not with the (alleged) Whig-Tory continental divide or with the competing assessments of hate speech, but with Locke in America and, in particular, with the changing perceptions of Locke in the first new nation. If this starting-point is adopted,

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a major complication for Lipset’s Whig-Tory contrast is that, beginning in the 1960s or earlier, several American historians and constitutional theorists have questioned or outright denied that Lockean ideas provide the master key for understanding the American Revolution and the US Constitution. Rather than focus on Locke, the revisionists emphasize the importance of the civic republican tradition or the influence of Scottish Enlightenment thinkers or the creative genius of the American Framers. They disagree about who should replace Locke, but they all object to the virtual canonization of Locke in Louis Hartz’s influential book The Liberal Tradition in America (1955). There were Lockean interpretations before Hartz, such as Carl Becker’s book on The Declaration of Independence (1922), which insisted that “the declaration, in its form, in its phraseology, follows closely certain sentences in Locke’s second treatise on government.”8 But Hartz went significantly beyond Becker and everyone else by using a Lockean framework to explain the whole course of American history and to analyze American democracy, American capitalism, American foreign policy, and America’s place in the world. Hartz’s book provoked strong reactions against Locke, which in turn led to critiques of the critics, and eventually to more measured statements about Locke. The American debate about Locke is important in itself and equally important for the assessment of the Whig-Tory contrast in Continental Divide. In Hartz’s interpretation, Locke and the United States are virtually synonymous. Hartz describes the United States as “a society which begins with Locke, and … stays with Locke, by virtue of an absolute and irrational attachment it develops for him.” He insists that “the master assumption of American political thought … the reality of atomistic social freedom” is contained in Locke’s account of the state of nature and Locke’s insistence that “in the beginning, all the world is America.” Nor were there ever very many real American Tories, even in the revolutionary era, because American conservatives also accepted Lockean principles and only insisted that peaceful means were to be used to advance America’s case against Britain. He also regards Locke as essential for the constitution and the American theory of judicial review. “Judicial review as it has worked in America,” he writes, “would

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be inconceivable without the national acceptance of the Lockean creed, ultimately enshrined in the constitution.” The constitution institutionalizes the Lockean creed; the American Way of Life is “a nationalist articulation of Locke.” As for the American democratic personality, Hartz insists that its agrarian and proletarian strands, “which in some sense typify the whole of American uniqueness, reveal collusion between Locke and the New World.” The Mayflower Compact is Lockean as is Horatio Alger and the American rags to riches story. In international affairs, Americans exhibit “an impulse to impose Locke everywhere.” Finally, as if to ensure that nothing is left untouched by Locke, Hartz writes: “Locke dominates American political thought, as no other thinker anywhere dominates the political thought of a nation.”9 But Hartz’s American Lockeanism is increasingly questioned. “Contemporary scholarship,” a noted historian of ideas has written, “seems obsessed with forever ridding the college curriculum of the baleful influence of Louis Hartz.”10 The element of truth in this statement is that there are important interpretations of the American Revolution and the American Constitution that assign a much less prominent role to Locke than Hartz did. Among them is the civic republican interpretation of Bernard Bailyn’s The Ideological Origins of the American Revolution (1967) and J.G.A. Pocock’s The Machiavellian Moment (1975). According to Bailyn, the colonists identified even more with the republican writers of the English civil war period and their eighteenth-century successors, especially the Cato Letters, than they did with Locke. The Cato Letters with their attack on corruption and praise of civil republican virtues, Bailyn writes, “ranked with the treatises of Locke as the most authoritative statement of the nature of political liberty and above Locke as an exposition of the social sources of the threats it faced.”11 Pocock also opposes “the conventional wisdom” of those who view the Puritan covenant as reborn in the Lockean contract and elevate Locke “to the station of the patron saint of American values.” Pocock “stresses Machiavelli at the expense of Locke” because the republic – as derived from Renaissance humanism and described in Niccolò Machiavelli’s Discourses on Livy – “was the true heir of the

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covenant and the dread of corruption the true heir of the jeremiad.”12 The foundation of an independent American republic, Pocock insists, was not primarily viewed as a Lockean experiment, but as a fragile Machiavellian moment in secular time within a dialectical framework of virtue and corruption, familiar to the most sophisticated American minds of the eighteenth century. Nor does Locke figure prominently in Douglas Adair’s revisionist or Madisonian interpretation of the US Constitution in his classic essays on James Madison and Number 10 of The Federalist. In 1787, the problem for the Framers, Adair argues, was how to construct a political system that not only preserved the states and local democracy, but also strengthened the national government without sliding into tyranny, and thereby succeeded in providing, as Madison said, a “republican remedy for the diseases most incident to republican government.”13 How, in other words, to fulfill the promise of the American Revolution once it became evident that the loose confederation of sovereign states, proposed in 1777, had failed? Madison’s famous solution is the theory of the compound republic. Pure democracy, he wrote, provided no cure for the mischief of factions, because the smaller the society, the more frequently a single faction would be able to execute its oppressions. What was required, Madison argued, was compounding the various interests of a large territory with (1) a federal system of semi-sovereign political units, (2) checks and balances in each government, and (3) a scheme of representation at the national level that refined the voice of the people. Only by devising a new or compound republican theory that focused on “the extent and proper structure” of the union was it possible to break the tyranny of factions and remedy the diseases of republican government. What Adair emphasizes is the originality and importance of Madison’s compound republic theory for American constitutionalism. He also notes Madison’s debt to Hume, for providing him with clues on how to solve the Montesquieuean problem of size, empire, and despotism that troubled and perplexed the American Framers.14 But even as Locke was being displaced, there were historians and constitutional theorists who insisted, in more subtle ways than Hartz,

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on the importance of certain Lockean ideas, among them Gordon Wood’s The Creation of the American Republic, 1776–1787 (1969) and Thomas Pangle’s The Spirit of Modern Republicanism (1988). Like Adair, Wood acknowledges the originality and importance of Madison’s constitutional synthesis, but he also detects some important Lockean ideas in it. They include Lockean ideas about property, the idea of a social compact prior to government, and especially a Lockean conception (in the Second Treatise) of “we, the people” as (1) a unitary entity with (2) the ultimate authority in a constitutional system such that (3) the rulers become the ruled in theory and even in practice once the appropriate Madisonian institutions are devised.15 For Wood, certain Lockean ideas are important when developed and transformed by Madison’s insights. Pangle also reasserts in a subtle way the importance of Locke, while insisting that “we cannot suppose that … the Founders had understood Locke so well or were in so perfect an agreement with what they understood, that their thought can be wholly explained as derivative from Locke.” What he emphasizes, nevertheless, is that “the most theoretically minded of the Framers followed Locke” in at least one important respect. “They tried,” he writes, “to find the surest ground of human security and dignity in a natural, competitive … individualism that is properly regulated … by reason dominating passion and sentiment through law that expresses indirect – but radical – popular sovereignty.”16 What, then, is the significance of Locke for America, given the debate within the first new nation? This is a difficult question, but the writings of Jefferson and Madison provide important insights. Jefferson’s remarks are part of his advice, in 1825, on mandatory readings for students at the University of Virginia. Locke’s essay on civil government was essential, Jefferson wrote, because it outlined “the general principles of liberty and the rights of man” that are “generally approved by our fellow citizens.” He also emphasized the importance of Sidney’s “Discourses on Government,” “The Declaration of Independence,” “The Federalist,” Virginia’s resolutions on the alien and sedition laws, and President Washington’s valedictory address.17 Madison’s remarks occur in The Federalist and an 1825 letter. “Is it not

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the glory of the people of America,” Madison wrote in The Federalist, “that, while they had paid a decent regard to the opinions of former times and other nations, they had not suffered a blind veneration for antiquity, for custom, or for names to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”18 In the letter, Madison listed virtually the same writings as Jefferson, included Locke for his ability to inspire a love of liberty, but warned against turning to Locke for textbook answers to American problems.19 Locke, in short, is important for American individualism and America’s self-image as a uniquely free society. But determining Locke’s significance (or otherwise) for specific constitutional issues such as First Amendment exceptionalism, or for foundational differences between the United States and Canada, is another matter. What is needed for those purposes are much more precise Lockean arguments rather than an open-ended Lockeanism or generalized Whiggism. The Internal Architecture of Canadian Constitutionalism: MacDonald’s Toryism and Canadian Pluralism What about Canada as the other half of the Whig-Tory divide? Two years separate Lipset’s The First New Nation (1963) and George Grant’s reflections on the Canadian identity in Lament for a Nation (1965). There is also the “Preliminary Report” of Canada’s Royal Commission on Bilingualism and Biculturalism (1965). Grant’s reflections overlap in several ways with Lipset’s Whig-Tory analysis. Like Lipset, Grant identifies Canada with Macdonald’s Tory dream of “peace, order and good government” and describes the American founders as “followers of Locke.”20 Where Grant differs from Lipset is that he takes a bleak view of the individualistic assumptions of America’s Whig exceptionalism, emphasizes the importance of the original Tory dream of Canada based on its commitment to the idea of a common good, and expresses deep concern about the disappearance of Macdonald’s Canada and about Canada’s future in a world dominated by American capitalism and technological imperatives. The “Preliminary Report”

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also expresses anxiety about Canada’s future, but says very little about Macdonald’s Toryism or American exceptionalism or a Whig-Tory divide. Instead, it focuses on Canadian pluralism and the conflicting images of Canadian pluralism from Confederation to Quebec’s quiet revolution with its demand for independence or equal partnership, as well as the growing demand for multiculturalism by increasing numbers of “third force” Canadians who fear “being crushed” between English (or British) Canadians and French Canadians. The “Preliminary Report” arrives at two main conclusions: that Canada is “passing through the greatest crisis of its history”; and that Canadians are in danger of losing “the will to live together.”21 Grant’s Lament and the “Preliminary Report” both focus on Canada’s constitutional identity. They do not, however, view it in the same way or ascribe equal significance to the Whig-Tory divide. Much depends on Macdonald. That Macdonald is important for Canada, almost no one denies and some accounts of Confederation focus almost exclusively on him. In Lament for a Nation, Grant recommends the work of Donald Creighton who was Macdonald’s biographer and the author of The Road to Confederation (1964). Macdonald and the other Canadian Founders, Creighton suggests, “were a very different people from that other generation of North Americans who adopted the Declaration of Independence and framed … the Constitution of the United States.” Not only were the Canadian founders far away from “the dogmas of the eighteenth-century Enlightenment,” but “‘life, liberty, and the pursuit of happiness’ … would have sounded … like irrelevant and questionable rhetoric” to them. They also witnessed the American Civil War which seemed to them “a breakdown not only of American federalism but also of American democracy.” The object of Confederation was to avoid the failings of the American Union, to keep British parliamentary government, and to preserve the British connection. There were, however, some demands for some form of federalism and the question became, could parliamentary government and federalism be combined? MacDonald, Creighton argues, provided the answer: the federal principle must be weakened to the point that local governments could not possibly

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threaten the national parliament’s sovereignty. “The acceptance of the ‘federal principle,’ against their own political traditions and wishes,” Creighton writes, “was the great concession that the English-speaking delegates at Quebec were prepared to make to French Canada.” But the concession was made, he adds, “on the clear understanding that the resulting British American union was to be a strongly centralized federation … [and] Macdonald drove the point home.”22 Creighton wrote other books after The Road to Confederation, among them Canada’s First Century (1970), which one reviewer described as “the full orchestration of Lament for a Nation.”23 In its final paragraph, Creighton writes that, by 1967, Canada’s institutions and the convictions that sustained them were in such a state of decline that “Canadians were almost incapable of realizing that their great nineteenth-century creation had been lost or destroyed.” Canadians and their governments appeared to forget about their past and set about trying to devise an entirely new constitution; but, Creighton writes, since the critics of monarchy, parliamentary institutions, and the common law had nothing of their own to offer, they “simply took over their proposals from the checks and balances of American congressional government and the principles of the American Bill of Rights.” Canadians had increasingly become economically dependent on the United States and increasingly imitated American ideas and the American way of life. The review of the Canadian constitution, Creighton concludes, was begun in confusion, was likely to end in futility, and was certain to bring American dominance in Canada “one stage further towards its final triumph.”24 In 1970, Grant also wrote a new introduction to Lament for a Nation. In it, he emphasizes that it was important not only to remind Canadians of the lost hopes and lost moral understanding of Confederation, but also to ridicule the ignoble illusions of the age of progress and the American capitalist dream. Unlike Creighton, however, he rejected complete pessimism because, as he said, new excellences can come out of great and terrifying catastrophes.25 The main emphasis of Grant and Creighton is on Macdonald’s Toryism and “the British connection.” For Grant, this meant an appeal to a tradition of British conservatism that included Richard Hooker

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and attempted to build a country with “a stronger sense of the common good and of public order than was possible under the individualism of the American capitalist dream.”26 What Creighton emphasized is Macdonald as a “new Tory,” who drew lessons from the American Civil War, was deeply committed to British political institutions, and made minimal federalist concessions for Quebec. The problem with this account of Canada and Confederation is that it is a half-truth even when the focus is on Macdonald. Creighton insisted, as noted above, that “The acceptance of the ‘federal principle’ … was the great concession … (made) to French Canada.”27 But Macdonald’s speech in 1865 tells a different story. Macdonald’s preference, as he stated, was for a legislative union with one government and one parliament, because it “would be the best, the cheapest, the most vigorous, and the strongest system of government we could adopt.” But Macdonald immediately added that such a system was impracticable, not just because Quebec rejected it, but also because, in his words, “a Federal Union [was] the only scheme practicable, even for the Maritime Provinces.”28 Canadian Confederation rejected the American model; it also departed far more than Macdonald preferred from the British model. “Toryism” and “the British connection,” even in Macdonald’s version of them, had to come to terms with Canadian pluralism. Questions about pluralism are also crucial for the Charter of Rights. In Conversation with Canadians (1972), Pierre Trudeau discussed (as prime minister) many of the themes analyzed in the “Preliminary Report” of the Royal Commission on Bilingualism and Biculturalism. He said that Canadians were building a new society in contemporary Canada based on multiculturalism and multinationality, and that the mosaic pattern made Canada different from the United States.29 Earlier, in 1967 and as minister of justice, he stated the fundamental objective of the proposed Charter of Rights: “Essentially, we will be testing – and hopefully, establishing – the unity of Canada.”30 But neither Pierre Trudeau nor anyone else was able to devise the ideal Charter of Rights that reconciled into a harmonious whole the manysided pluralism of Canada and thereby completely dispelled the crisis of diversity identified in the “Preliminary Report.” That is why a

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major book on the new Charter, published one year after its adoption, had the title And No One Cheered (1983). The government of Quebec regarded the Charter as incompatible with its autonomy and withheld its consent. Women’s groups “were shocked to discover how hard they had to lobby” to achieve the basic equality guaranteed in section 28, and insisted that much more remained to be accomplished. To many Aboriginal leaders, the Aboriginal rights provisions were inadequate because they failed to entrench the right to self-government as an inherent political right of First Nations. “A restrained half cheer,” one commentator concluded, was the most appropriate response to the changes of 1982.31 The Charter changes the constitutional landscape, but leaves Confederation intact. What, then, can be said about Canada’s constitutional landscape as a whole? Lipset’s answer, which overlaps with Grant’s and Creighton’s, is the Whig-Tory contrast. The Supreme Court, however, outlined a different answer in the Quebec Secession Reference (1998). The precise issue before the court was whether Quebec had a right of unilateral secession. The court denied that such a right existed; affirmed that all parties had, nevertheless, a duty to negotiate constitutional change, including the possible break up of Canada; and, in articulating its decision, identified four principles as forming the “internal architecture” of the Canadian constitution. They are federalism, democracy, constitutionalism and the rule of law, and respect for minorities. These four principles, the court insisted, are constitutive of Canada’s constitution from Confederation. Even with respect to the protection of minority rights, often identified solely with the Charter, Canada, the court insisted, has a long history; “not a spotless one,” but it is “the goal towards which Canadians have been striving since confederation.” The court also described federalism as the “lodestar” of the constitution; insisted that federalism’s importance “cannot be exaggerated” because neither Quebec nor the Maritimes would have accepted Confederation without it; and quoted Cartier’s speech in 1865 on federalism, minority rights, and political nationality as indicative of the complex meaning of Confederation.32 As Canadians debated the possible break up of their country, the Supreme Court took steps toward articulating

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a Canadian constitutional faith by linking the pluralist aspirations of 1867 and 1982, and by emphasizing neglected dimensions of the Canadian constitutional tradition. What the idea of a Canadian constitutional faith presupposes, in part, is that Canada has a distinctive constitutional identity. That such an identity exists seems evident, if the Supreme Court’s statement about the internal architecture of the Canadian constitution is compared to A.V. Dicey’s classic account of the British constitution and Justice Holmes on the US constitution. In The Law of the Constitution (1885), Dicey described the unlimited sovereignty of Parliament as the “dominant characteristic” of the British constitution.33 Its other characteristics were the rule of law and the conventions of the constitution, but its “dominant characteristic” was parliamentary sovereignty. In the United States, there exists a strong preference for freedom, frequently expressed as “The Firstness of the First Amendment” or as Holmes’s “freedom for the thought that we hate” or in other ways.34 Canadian constitutionalism is different. Its four defining principles, the Supreme Court has insisted, “function in symbiosis. No single principle can … trump or exclude operation of any other.”35 What makes Canadian constitutionalism different is the depth of its pluralism, which in 1867 meant rejecting the kind of constitutional monism that culminates in Diceyean parliamentary sovereignty and, in 1982, meant denying priority to liberty rights as found under the US Bill of Rights and refusing to establish a hierarchy among the rights of Canadians. Not Macdonald’s “new Toryism” or an almost forgotten tradition of British conservatism, but the mosaic idea comes closest to expressing Canada’s constitutional identity. And with mosaic pluralism comes, at times, “half cheers,” coupled with constitutional innovations that reach beyond a Whig-Tory divide. Free Speech, Hate Propaganda, and Lockean Toleration: Canada and the United States as Lockean Variants In a study of American exceptionalism that focuses almost solely on free speech, a prominent American theorist has noted that “the United States is an outlier in the strong protection it affords … noxious forms

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of extreme speech.” His conclusion is that “what might look like senseless overprotection of speech … in fact reflects hard-learned lessons about … the right of dissent in a democratic society.”36 Canada is also a democracy, yet it does not protect hate speech or “overprotect” speech. “Canada,” it has been observed, “has more hate propaganda legislation than any other country in the world.”37 Unlike Canada, the United States has no valid legislation prohibiting hate speech. Is the difference, then, that the United States is, as Lipset suggested, “Still Whig” or Lockean or liberal and Canada “Still Tory” or anti-Lockean or anti-liberal? What makes Lockean ideas important in this context, especially Locke’s Letter Concerning Toleration, is that they are doubleedged, with some Lockean arguments supporting American free speech exceptionalism, while other Lockean arguments buttress the Canadian restrictions on hate speech. A continental divide remains, but it reflects different Lockean ideas and different liberal constitutional faiths. Contemporary American theorizing about free speech almost always begins with Justice Holmes rather than Locke, and repeatedly cites Holmes’s dissents in Abrams (1919) and Schwimmer (1929). Abrams is a seditious libel case, in which Holmes advocated “free trade in ideas” even in wartime and even for anarchists and revolutionists. The US constitution, he wrote, “is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.” The conclusion he drew was that speech should be restricted only if “an immediate check is required to save the country.”38 Schwimmer raises a different problem. It involved a pacifist who was denied citizenship in peacetime because she would not swear to take up arms to defend the United States. What troubled Holmes most about the court’s decision and the denial of citizenship was the assertion that, as a pacifist, Rosika Schwimmer could not be attached to the principles of the US constitution. Quakers were also pacifists and had helped to make the country what it is, yet the disturbing implication of the court’s decision, Holmes wrote scathingly, was that Americans should regret their inability to expel them for believing “more than some of us do in the teachings of the Sermon on the Mount.” It was in response to Rosika

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Schwimmer’s expulsion that Holmes articulated the canonical statement about “freedom for the thought that we hate” as the US constitution’s first principle.39 Holmes’s famous dissents also contain, however, gaps and conundrums. The first conundrum arises because Holmes was a philosophical skeptic, yet it is far from self-evident, as Ronald Dworkin and others have noted, that his free speech philosophy and his philosophical skepticism can be reconciled.40 The second conundrum was identified by Leonard Levy, who insisted that, despite Holmes’s assertion in Abrams, the Framers of the First Amendment did not intend to abolish the crime of seditious libel, that they did not, therefore, embrace a libertarian free speech theory, and that when a libertarian theory finally emerged under the expansive language of the First Amendment one of its elements was a Lockean psychology of belief.41 The third and final conundrum is about the “overprotection” of speech and was first stated by John Wigmore. He believed that Holmes’s advocacy of “free trade in ideas” in Abrams amounted to freedom for thuggery and he warned Americans that the constitutional guarantee of free speech was “invoked more and more in misuse” to provide “unfair protection” to fanatical and violent minorities “impatient of the usual process of rationally converting the majority.”42 Rather than overprotect speech, Wigmore went on to say, a genuine concern for “truth” or “democracy” suggested that much extremist speech was antithetical to these values and should be restricted.43 These conundrums are unsolvable if Holmes’s philosophical skepticism is accepted. But philosophical skepticism is not essential for First Amendment exceptionalism and forms no part of the “moral truths” orientation of the Declaration of Independence, which marks the beginning of the American constitutional tradition. Moreover, the declaration’s principal author was Jefferson who drew on Locke and rejected skepticism not only in 1776 but also when he drafted Virginia’s famous “Bill for Establishing Religious Freedom.” It announced, before Holmes, a strong principle of free speech and thought. Jefferson’s “Bill” begins by stating that “the opinions and beliefs of men depend not on their own will but follow involuntarily the evidence proposed to their

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minds”; it asserts that “Almighty God hath created the mind free”; and it concludes that “all men shall be free to profess … their opinions in matters of religion.”44 Although Locke may not be his only source, Jefferson’s “Bill” develops one of the principle arguments of Locke’s Letter Concerning Toleration. According to Locke’s “argument from belief,” a ruler who forces his subjects to attend his own religious services “is wasting his time … (because) if they do not (sincerely) believe, they will perish anyway, even if they come.”45 The LockeJefferson theory influenced the religion clauses in the constitution. Less clear is its influence on the “original intent” of the Framers of the free speech clause. Nevertheless, once the Amendment was adopted, the Locke-Jefferson theory of belief, in Levy’s words, became important again and “went far to provide immunity for political expression.”46 Levy did not say, however, how far it went in protecting political expression, nor did he say anything about Locke’s debate with Proast or Locke’s admission that “the belief argument” becomes untenable if expressed categorically.47 That is why Locke, in reply to Proast, also drew attention to two other arguments. Thus Locke argues, against Proast, that even if the state possesses the coercive capacity to change belief, it lacks the authority to do so because citizens are equals and because the state has no paternalistic power over them. In the Letter, this is Locke’s second or “mandate argument.”48 Even more significant, in the American context, is Locke’s third argument because it its virtually identical with what American free speech theorists call “the argument from government incompetence.” In “The Exceptional First Amendment,” Frederick Schauer notes the high degree of citizen distrust of government in the United States. He also suggests that American “skepticism about the ability of any government institution reliably to distinguish the good from the bad, the true from the false … finds its most comfortable home in the First Amendment.”49 Behind Schauer’s free speech theorizing is not only a scaled-down version of Holmes’s skepticism but also Locke’s third argument. According to Locke’s “argument from error,” even if the state were assumed to have authority to enforce (religious) truth, the state is unlikely to be guided by it because political actors are motivated by many considerations besides

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truth.50 Locke’s third argument, like the argument about government incompetence, supports American free speech exceptionalism without sliding into a comprehensive philosophical skepticism that is incompatible with the American constitutional tradition. First Amendment exceptionalism is many-sided and, in an important sense, Lockean. There is, however, one aspect of the American “paradox of the overprotection of speech” that is not fully explained by “the argument from government incompetence” or by Locke’s third argument. In Holmes’s dissents, the movement is from “free trade in ideas” (Abrams) to “fighting faiths” to “freedom for the thought that we hate” (Schwimmer). Moreover, the United States rests on a fighting faith – beginning with the Declaration of Independence and variously described as the liberal tradition in America or the American civil religion or the American constitutional faith.51 Holmes cherished America’s distinctive “fighting faith” but also warned of its dangers, especially when he protested Rosika Schwimmer’s expulsion and felt compelled to defend the freedom to believe in the Sermon on the Mount. In Schwimmer, Holmes was not thinking about government incompetence or “free trade in ideas” or seditious libel. He was far more concerned about the devastating intolerance that flowed from the American constitutional faith if left unchecked by “the overprotection of speech” or “freedom for the thought that we hate.” Two decades later, McCarthyism demonstrated the importance of Holmes’s dissent. Just as significant is New York Times v. Sullivan (1964), which, in the midst of the civil rights marches, identified the First Amendment with “uninhibited, robust and wide-open” debate on public issues.52 The hope of many Americans is that wide-open debate will help to create a more perfect American people; and that “we the people,” when checked by “freedom for the thought that we hate,” will not become, as it sometimes has, a constitutional faith that justifies intolerance and conformism, or a rationale for denying basic human rights. Free expression and hate speech laws can no more be divorced from questions about constitutional faith than they can be from theories of truth or conceptions of personal autonomy. Moreover, Canada and the United States differ in matters of identity and constitutional

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faith. Canada is often described as a mosaic and the United States as a melting-pot. This is a half-truth but it is an important half-truth for hate speech laws. Hateful speech is protected under the First Amendment because American judges have been unable to find a state interest strong enough to justify its suppression. The deepest rationale of these decisions – deeper than even the American distrust of government – is faith in the American people when, as Jefferson said, reason is left free to combat error in an open encounter.53 Canada is different, because a Canadian people and a Canadian nation are not things that can be taken for granted, either politically or conceptually. “We the people,” enlightened or otherwise, has no echo in Canada and does not appear even in the Charter of Rights. As a multinational federation, Canada contains group identities capable of challenging the common sympathies required by Canadian nationhood. In Canada, strong group identities can bring strong group hatreds, as well as the need to control intolerant and hateful speech for the sake of a common Canadian citizenship and to sustain a constitutional faith suited to the Canadian mosaic. The counterweight to American free speech theory in terms of “Canada as a mosaic” is Chief Justice Dickson’s majority opinion on hate speech in the landmark Keegstra decision (1990). It links the Charter to the Report of the Special Committee on Hate Propaganda in Canada (1966) and mirrors the conception of a deeply pluralistic and tolerant society in Locke’s Letter. A schoolteacher in Eckville, Alberta until his dismissal in 1982, James Keegstra described Jews as “child killers”; dismissed the Holocaust as a myth; and included Blacks, Catholics, and other groups in his hate message. Was his hate speech protected by the charter? The court held – in a four-to-three decision – that it was not. The dissenting judges conceded that the objectives of the anti-hate legislation were “laudable,” “serious,” and of “a substantial nature” but concluded that the benefits of the legislation were outweighed by the infringement on free expression. They also insisted that “freedom of expression is unique among the rights and freedoms guaranteed by the charter … [because it] is fundamental to our democracy and hence to all the other rights and freedoms.”54 When so viewed, freedom of

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expression under the Charter becomes, in effect, a Canadian version of the American theory. In arriving at a different conclusion, Dickson emphasized that freedom of expression was not accorded priority in the Charter and had to be interpreted in conjunction with other Charter rights and values. “(T)he special role given equality and multiculturalism in the Canadian constitution,” Dickson explained, “necessitate a departure from the view … prevalent in America … that the suppression of hate propaganda is incompatible with the guarantee of free expression.”55 What Dickson emphasized was the uniqueness of the Charter. Holmes’s recurring appeal is to “free trade in ideas” and “freedom for the thought that we hate.” Dickson repeatedly refers to the Report on Hate Propaganda in Canada and its conclusions about “the power of words to maim” and the ability of hate propaganda “to undermine the confidence that various groups in a multicultural society must have in each other.”56 Moreover, Dickson’s argument contains premises that demonstrate “independence of vision” and “accentuate a uniquely Canadian vision of a free and democratic society.” Those premises can be stated as follows. First, while hate propaganda is speech under the free expression provision, it is only marginally connected to the core speech values, such as truth, protected by the Charter’s reasonable limits clause. Second, the risks in censoring hate propaganda, including “the chilling effect,” are significantly diminished by the existence of safeguards, such as the defense of good faith communication. Third, the willful promotion of hatred is the source of significant harm to individuals and society. Fourth and finally, Canadian society, as a multicultural (and multinational) polity committed to deep diversity and equal dignity, cannot exist if hate propaganda circulates freely and is left unchecked.57 Or as Charles Taylor observed, a country like Canada “can break up” if there is “a lack of (perceived) recognition of the equal worth of one group by another.”58 One of the main conclusions of the Royal Commission on Bilingualism and Biculturalism in its “Preliminary Report” was that Canada’s many-sided diversity presupposes, but cannot take for granted, “the will to live together.” In “Towards the Regime of Tolerance,”

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written almost two decades later, Thomas Berger analyzed Confederation and the Charter and observed that “along every seam in the Canadian mosaic unraveled by conflict, a thread of tolerance can be seen.” This Canadian thread of tolerance, he said, was a “profound conviction about the virtues of diversity.”59 Conflict, tolerance, and diversity are also themes of the Keegstra decision and of Locke’s Letter. James Keegstra’s message was about hatred and exclusion toward Jews and other groups that make up the Canadian mosaic. Locke’s message was different. “If we allow the Jews to have private houses … why should we not allow them to have synagogues?” Locke wanted to expand the boundaries of tolerance even in the fractured world of 1689 and insisted that “neither pagan nor Mahometan nor Jew ought to be excluded from the civil rights of the commonwealth.”60 Locke’s plea is for toleration as pluralistic inclusion, for “peace, equality and good will” among groups with ways of life as different as Christians, pagans, Jews, and Mahometans.61 It was also Locke’s view that those who refuse to teach (or practice) the duty of toleration have no right to be tolerated by the magistrate. Canada as a tolerant and inclusive mosaic that restricts hate speech exemplifies several of the most important ideas of Locke’s Letter. It also illustrates that almost nothing about Lockean ideas or modern constitutionalism is as simple as the Whig-Tory divide seems to imply. Conclusion: Locke, the First New Nation, and the Peaceable Kingdom In a study of “the idea of America,” Adrienne Koch emphasizes and applies the insight that “Know thyself is as useful a precept to nations as to men.” According to Koch, it was Madison “who earned himself the title of ‘Father of the Constitution’ [and] crystalized the dynamic meaning of ‘the idea of America’” in a letter he wrote. “The free system of government we have established,” Madison said, “is so congenial with reason, with common sense … that … our country, if it does justice to itself, will be the officina-Libertatis (workshop of liberty).” The idea of a “workshop of liberty” is important because, as Koch

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comments, liberty is not “free like the air” but something that must be established and maintained. It requires “theory” to be combined with “experience.”62 That is why Madison, while recommending Locke for his love of liberty, praises Americans for accomplishing a revolution with “no parallels” in history and for rearing “the fabrics of governments” with “no model.”63 In Madison’s view, America was an original and ongoing experiment in liberty, and not simply a restatement of Locke’s Second Treatise or of already existing Whig or Machiavellian principles and solutions. Judged from this perspective, the Whig-Tory orthodoxy is unsatisfactory because of what it fails to say about liberty’s workshop. It is also unsatisfactory in ascribing so little importance to Lockean ideas in Canada. Even at Confederation, Lockean and Whig ideas were more important than the Whig-Tory orthodoxy suggests. In the Confederation Debates, the Canadian Framers praised British parliamentary government understood as responsible government. Responsible government, however, is not a Tory idea; it is Whiggish and Lockean.64 It first came to Canada through Lord Durham’s Report on the rebellion of 1837 and “Radical Jack” was a Whig liberal.65 His Report also contained, however, a unitary state proposal and an assimilation proposal directed against French Canadians whom he regarded as an inferior race. What Lord Durham did not foresee, writes a subsequent editor of the Report, is “that Canadian development would have to be in the other direction: toward mutual respect and tolerance” in building a country that rejected his assimilation proposal.66 That was also the view of the Canadian founders in 1867. They rejected Durham on assimilation, because they rejected his English-French “war of races” theory. And Macdonald’s unitary state proposal was not something that either Quebec or the Maritime Provinces would accept. The constitutional settlement of 1867 combined Tory ideas about the British crown and Whig ideas about responsible government, with Canadian ideas of federal pluralism and minority rights. “Finally, there was,” a Canadian historian has noted, “the instinctive feeling … that monarchical allegiance allowed a diversity of customs and rights … that the rational scheme and abstract principles of [American] republican democracy did not.”67

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Monarchical allegiance created a “new Tory” experiment in “peace, order, and good government,” but it also made possible Canada as a pluralistic experiment with the aspiration to become “the Peaceable Kingdom.” Its imagery, as Northrop Frye noted, is a vision of reconciliation of man with nature, of White Settlers with Aboriginals, and of man with man.68 It is a Canadian vision of pluralism that has Biblical as well as Aboriginal roots. Just as the United States aspires to be “the workshop of liberty,” so Canada aspires to be an ongoing experiment in “the Peaceable Kingdom.” But Canada as “the Peaceable Kingdom” is often more an ideal than a reality. “The Canada to which we really do owe loyalty,” Frye also wrote, “is the Canada that we have failed to create.”69 Some Canadian Aboriginals have expressed similar views. “We like the idea,” wrote Harold Cardinal in The Unjust Society (1969), “of a Canada … (as) the great mosaic. We are impatient for the day when other Canadians will accord the Indian the recognition implied in this vision of Canada.”70 Locke might seem an unlikely source for a Canada that accommodates Aboriginal nations, but Locke was a wide-ranging thinker and Lockean ideas figure prominently in Brian Slattery’s “First Nations and the Constitution.” Slattery’s focus is on “the less well-known” Locke as the theorist of “governmental trust,” rather than Locke on the state of nature and individual natural rights. Slattery also notes that the Supreme Court has emphasized the responsibility of the Government of Canada to act in a fiduciary capacity with respect to Aboriginal peoples, which involves a trust-like rather than adversarial relationship, coupled with deeper contemporary affirmations of Aboriginal rights. “The Canadian Constitution,” Slattery goes on to say, “is animated by a distinctive doctrine of constitutional trust, which contrasts with the doctrine of parliamentary sovereignty prevailing in the United Kingdom … and with American ideas of popular sovereignty and individual rights.” In particular, this doctrine of constitutional trust “has certain affinities with Aboriginal themes, and in other respects resembles some of Locke’s ideas,” but it also has a “character of its own, shaped by communitarian and pluralist forces of Canadian history.”71 Much about Canada’s future, Slattery concludes, will depend on the ability of the peoples of Canada to realize more fully these Lockean, Aboriginal, and Canadian ideas

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about trust. Whether the focus is hate speech and the Keegstra decision or the Charter’s notwithstanding clause or Aboriginal rights, Canadian pluralism makes Canada important for contemporary theorizing about constitutionalism. It also highlights that Lockean ideas reach beyond the Whig-Tory orthodoxy and resonate in Canada imagined as “the Peaceable Kingdom.” Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Friedrich, The Impact of American Constitutionalism Abroad, 12. See Gardbaum, The New Commonwealth Model, 25–36. United States v. Schwimmer, 654–5. Lipset, Continental Divide, 212; Lipset, The First New Nation, 98–102, 285–306. Lipset, Continental Divide, 56. Locke, A Letter Concerning Toleration; Vernon, Locke on Toleration; LaSelva, “Toleration without Hate Speech.” Taylor, Reconciling the Solitudes, 182–4. Becker, The Declaration of Independence, 27. Hartz, The Liberal Tradition in America, 6, 62, 58, 9, 11, 17, 61–3, 13, 140. Kramnick, “The ‘Great National Discussion,’” 4. Bailyn, The Ideological Origins of the American, 34–5, 36. Pocock, The Machiavellian Moment, 545. Madison, Number 10, 136. Adair, Fame and the Founding Fathers, 132–51. Wood, The Creation of the American Republic, 29, 62, 151, 219, 283, 292, 371, 602. Pangle, The Spirit of Modern Republicanism, 126–7. Jefferson’s letter is reprinted in Jefferson, Writings, 479. Madison, The Federalist, 154. Madison’s letter is reprinted in Meyers, The Mind of the Founder, 444. Grant, Lament for a Nation, 61. A Preliminary Report of the Royal Commission on Bilingualism and Biculturalism, 13, 135. Creighton, The Road to Confederation, 140, 144–5. W.L. Morton, cited in Berger, The Writing of Canadian History, 235. Creighton, Canada’s First Century, 356. Grant, Lament for a Nation, xii. Ibid., x.

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27 Creighton, The Road to Confederation, 145. 28 Macdonald’s speech, in Waite, The Confederation Debates in the Province of Canada/1865, 40–1. 29 Trudeau, Conversations with Canadians, 32–3, 91. 30 Reprinted in Trudeau, Federalism and the French Canadians, 54. 31 Hosek et al., in Banting and Simeon, And No One Cheered, 291, 295, 327, 55. 32 Reference re Secession of Quebec, 419, 403, 421–2, 405–7. 33 Dicey, An Introduction to the Study of the Law of the Constitution, 39. 34 See Cahn, “The Firstness of the First Amendment,” 470–5. 35 Reference re Secession of Quebec, 410. 36 Weinstein, “An Overview of American Free Speech Doctrine and Its Application to Extreme Speech,” 81, 91. 37 Magnet, “Hate Propaganda in Canada,” 229. 38 Abrams v. United States, 630. 39 United States v. Schwimmer, 653–5. 40 Dworkin, Freedom’s Law, 341. 41 Levy, Freedom of Speech and Press in Early American History, 308–9, xxvi, 1–17, 313. 42 Wigmore, “Abrams v. US,” 558–9. 43 Bollinger, The Tolerant Society, 15–23. 44 Jefferson, “A Bill for Establishing Religious Freedom,” 346–7. 45 Vernon, Locke on Toleration, 21. 46 Levy, Emergence of a Free, 337. 47 See Vernon, The Career of Toleration, 17–34. 48 Vernon, Locke on Toleration, xv–xvii; Vernon, “Lockean Toleration: Dialogical or Theological,” 215–30. 49 Schauer, “The Exceptional First Amendment,” 46. 50 Locke, Letter, 19. 51 Richey and Jones, American Civil Religion, 25, 36; Hartz, The Liberal Tradition in America, 10–14, 56–62, 286, 305–9; Stanford Levinson, Constitutional Faith, 9–17, 87–9, 126–54, 193. 52 New York Times v. Sullivan (1964), reprinted in Emerson, Toward a General Theory of the First Amendment, 208. 53 “First Inaugural Address,” in Jefferson, Writings, 493. 54 R. v. Keegstra, Canadian Rights Reporter, 300–1. 55 Ibid., 225. 56 Report of the Special Committee on Hate Propaganda in Canada, preface, 25. 57 R. v. Keegstra, 225, 240–1. 58 Taylor, Multiculturalism and “The Politics of Recognition,” 64.

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Berger, “Towards the Regime of Tolerance,” 88. Locke, Letter, 57, 56. LaSelva, “Toleration without Hate Speech,” 705–16. Koch, Power, Morals, and the Founding Fathers, 12, 128–9. Madison, The Federalist, 154. See the discussion of Locke and the Canadian Parliament in Ajzenstat, The Canadian Founding, 3–21. Ajzenstat, The Political Thought of Lord Durham, 13, 42. Craig, Lord Durham’s Report, x. Morton, The Canadian Identity, 105. Frye in Kilbourn, Canada: A Guide to the Peaceable Kingdom, xvii. Frye, The Modern Century, 122–3. Cardinal, The Unjust Society, 12. Slattery, “First Nations and the Constitution,” 267–8, 293.

Chapter Eleven Beyond Toleration? Steven Lecce Toleration should be a temporary attitude only; it must lead to recognition. To tolerate means to insult. Goethe, Maxims and Reflections

I think in Canada we should go beyond tolerance. Prime Minister Justin Trudeau

Introduction When people disagree with one another, they can do several things about it. They can continue talking in the hope that controversy might give way to consensus or a compromise. Sometimes, though, rational discourse and compromise appear impossible because the disagreement in question is so intractable, and the underlying objections so fundamental, that, instead of talking or compromising, people feel the need to kill or, failing that, at least to silence one another. Often, however, disagreement is eminently less dramatic, and people’s reasons for objecting are more a matter of taste and preference rather than, say, settled moral, religious, or philosophical conviction. If so, what follows is a kind of begrudging acceptance or indifference rather than sectarian violence and fanatical repression. Notice, however, that persuasion, violence, and indifference are all ways of leaving disagreement behind: persuasion tries to make others think as we do; murder and milder forms of violence silence them; and indifference makes them invisible to us. In each case, the goal is to be left alone, unbothered in the familiar company of those who think and act as we do.

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But what if repression is either impossible or unwise, and what if the stakes are such as to make both compromise and indifference unreasonable to expect? Located somewhere between the extremes of violence and indifference is a complicated set of attitudes and practices that purport to accommodate rather than altogether transcend disagreement – toleration. While the practice of political toleration clearly pre-dates liberalism,1 the classical or core conception of toleration as an idea developed in the shadow of the European wars of religion, and in the liberal political theory born therefrom. In general terms, toleration involves our putting up with the beliefs, actions, or practices of others when we disapprove of them, and notwithstanding the fact that we have the power to prohibit or otherwise suppress them. Given the influence and importance of John Locke’s Letter Concerning Toleration, J.S. Mill’s On Liberty, and John Rawls’s A Theory of Justice, it is not surprising that toleration has come to be closely associated with the political morality of liberalism. And yet there also seems to be something fundamentally problematic about that association, particularly in the context of contemporary liberal theories that interpret toleration as a kind of state neutrality between contested ethical doctrines. For example, toleration supposes a hierarchical relationship between a powerful authority and a weaker potential victim: can this structure plausibly be invoked in a democracy of civic equals? The classical liberal solution to religious disagreement involved privatizing contested beliefs and practices to a protected realm of individual choice. Modern neutralist liberalism is a self-conscious extension of that strategy. But if contemporary political controversies about toleration and its limits are typically generated by the invisibility, exclusion, and marginalization of unpopular groups, then the proposed extension assumes an overly reductive picture of pluralism and is therefore destined to fail. Furthermore, the neutral state is imagined as an impartial third party to the ethical controversies that divide its citizens: its primary obligation is to display fairness and it does so by adopting no view whatsoever as to the relative merits of people’s justice-respecting beliefs and practices. But what’s left of toleration in light of this principled agnosticism?

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Finally, if toleration is to be given a principled justification so that it amounts to something other and more than a pragmatic truce among combatants, then it appears to be caught on the horns of a dilemma: either there can be reasonable disagreement about that principled justification, in which case we are unlikely to identify mutually acceptable and therefore convergent and mutually binding limits to toleration, or there cannot be reasonable disagreement about justice, in which case toleration is impossible because there are only things we ought not to object to and things that we ought not to tolerate. In light of all this, perhaps we should think of toleration as an “interim value, serving as a period between a past when no one had heard of it and a future in which no one will need it.”2 In fact, as some commentators have noted, the “overwhelming impression given by the literature of the last ten years is that the traditional understanding of toleration is inadequate to our times and risks irrelevance.”3 For some of liberalism’s contemporary defenders, however, this is too quick, because the problems in question motivate not the abandonment or the transcendence of toleration, nor the rejection of toleration as neutrality, but rather its reinvention in the guise of equal recognition.4 On this view, recognition is a “customized form of accommodation of an identity-related component of a conception of the good”5 and by extending such recognition fairly, the liberal state is thought to better include and respect the equal freedom of its citizens than is possible under the unreformed neutralist ideal. Are there compelling reasons, then, for thinking that democracies should reimagine the traditional liberal notion of toleration in the direction of recognition? In this chapter, I raise doubts about equal recognition as an improvement over the classical view. Section 1 briefly sketches the classical view of toleration. Section 2 outlines how and why that view sits uncomfortably with central features of contemporary liberal-democratic theory. Section 3 summarizes the core case for “equal recognition.” Section 4 suggests that equal recognition is far more problematic than its advocates tend to realize. I conclude by hinting at some of the ways that objections to the classical view of toleration might be defused.

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Does the failure of the case for equal recognition mean that democratic states should never accommodate minorities? Of course not. But we should think of those accommodations as remedial measures and compensation for past violations of liberal principles of justice, where those principles do not include “recognition.” 1 We sometimes describe people as “tolerant” when they are openminded, or liberal, in their attitudes towards unconventional or unpopular beliefs and practices. However, if such generosity of spirit trades upon either their not caring one way or another, or upon their positive endorsement of difference, then strictly speaking we are mistaken. The distinctive feature of toleration that the West has inherited from the aftermath of the Reformation and its wars of religion is a paradoxical combination of negative judgment/condemnation and self-restraint. According to this classical conception of toleration: “toleration is the willing putting up with the beliefs, actions or practices of others by a person or groups that disapproves of them, if they had the power to do so. Toleration in this sense is a deliberate exercise of self-restraint, a willed refusal to interfere coercively with what is regarded as the objectionable behavior of others.”6 Rather than indifference or endorsement, then, toleration has a “grudging condemnatory quality”7 such that, from the perspective of the tolerant, it would be better if the subjects and objects of their disapproval no longer existed. But if this kind of judgment is an essential feature of toleration, how are we to understand the grounds and limits of the requisite self-restraint? In a landmark study8 of the philosophical and political discourse of toleration since antiquity, Rainer Forst has recently argued that the concept of toleration has six primary components. A conception of toleration differs from its competitors because of how and why it articulates these key components. To help us better understand what is at issue between proponents and critics of the classical conception of toleration, let’s briefly identify these semantic contents.

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First, a theory of toleration must specify a “context of toleration.”9 Between whom or what does a tolerant relationship obtain? Between, say, parents and children, workplace colleagues, compatriots, participants in an economic scheme, or human beings considered in abstraction from any of these more particularistic descriptors? Second, a theory of toleration must invoke an “objection component”10 such that the tolerated beliefs or practices are regarded as false and/or condemned as bad: what’s wrong with what we oppose? Third, a theory of toleration must outline an “acceptance component”11 so that while tolerated beliefs or practices are thought to be false and/or condemned as bad, they are not “so false or bad that other, positive reasons do not speak for tolerating them.”12 In the face of what bothers us, why should we restrain ourselves? Fourth, any theory of toleration must somehow identify limits beyond which beliefs and practices ought to be repressed: why is intolerance permissible and sometimes even obligatory? Fifth, toleration requires that self-restraint be freely chosen rather than coerced,13 otherwise there is no room for expressing or acting upon one’s objections. Finally, a theory of toleration can incorporate both individual and collective/institutional practices and specify attitudes and supposed associated virtues. The conception of toleration that emerged from the Reformation and that finds expression in, say, Locke’s Letter Concerning Toleration is grounded in the supposed intractability and permanence of religious disagreement. This pessimistic diagnosis generates a theory of toleration from decidedly minimalistic or “thin” ethical and/or pragmatic considerations. On this “no frills”14 view, there is no thought of overcoming disagreement or resolving the clash of convictions and practices – the objection and acceptance components do not cancel one another out, nor are the underlying objections weakened. In response to the brute fact of enduring conflict, toleration simply tries to contain the damage from religious strife such that peace rather than war is more likely. And the primary mechanism for defusing religious strife is the relegation of beliefs and practices that are antecedently likely to arouse hostility, contempt, and disrespect to a private sphere of individual conscience and choice, free from political interference. It is

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disagreement, then, and not simply difference, that sets the political problem to which toleration is a supposed solution, and this means that “negativity and rejection lie at the heart of this conception of toleration, especially when some action or practice is disapproved of for what are taken to be moral reasons.”15 2 The classical notion of toleration sits rather uneasily with several of the core normative commitments of contemporary liberal-democratic theory. In addition to the unrelentingly judgmental attitude just mentioned above is the inherent structural asymmetry of classical toleration’s description of the contending parties. Toleration, that is, is something that the strong extend to the weak, who are in no position to reciprocate.16 It was partly based on this inequality, for example, that Thomas Paine concluded that toleration “is not the opposite of intolerance but the counterpart of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience and the other of granting it.”17 So even if toleration’s emergence did herald a significant historical advance over older norms sanctioning religious persecution and genocide, there appears to be something inherently insulting about mere toleration, and the problem is not simply attitudinal but also structural. As described by the classical view, the context of toleration is not reciprocal: “one side permits the other certain deviations provided that the political dominance of the permission-granting side is not infringed upon. Toleration is understood accordingly as permissio mali, as putting up with a conviction or practice which is regarded as neither worthy nor deserving of equal treatment.”18 This permissive largesse summons the image of a monarch putting up with the eccentricities and oddities of some of his unpopular subjects. However, at the foundation of democracy is the free and equal citizen, not the subservient subject, and law and public policy in a democratic society must treat all citizens with equal concern and respect as a matter of basic justice, not benevolence or charity. The democratic sovereign, then, is constrained and in a real sense compelled to behave

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tolerantly, which makes a mess of the hierarchical structure presupposed under the classical view. A king can choose to behave tolerantly or not; democratic government owes its citizens toleration. So we cannot simply carry over the idea that elected governments are the equivalents of tolerant monarchs because the notion that an elected government might tolerate its electors inverts the proper democratic relationship: “An elected government stands to its electorate as agent to principal and it cannot be for an agent to decide whether it shall indulge its principal.”19 If we are truly desperate to find a contemporary democratic analogue for the context of toleration under its classical description, one possibility is in the relationship between political majorities and political minorities. This suggestion is equally unpromising because it again reintroduces hierarchical power relations in a context that precludes them. Another problem with the classical view concerns its allegedly reductive interpretation of pluralism under contemporary circumstances. Historically, liberal theory has tended to view moral and ethical disagreement as an extension of religious disagreement and of a particularly Protestant understanding of religion at that: toleration is required, that is, because of intractable differences between individual believers. Because people’s examined and therefore self-chosen fundamental beliefs – originally religious ones, but later also moral and ethical convictions too – clash, the only political solution consistent with both social peace and respect for the supposed inner citadel of conscience was to relegate such beliefs to a private realm of individual choice: “Public institutions achieve neutrality in this area by applying the same standard of harm to all and otherwise relegating the pursuit and enjoyment of religion to the private sphere of civil society.”20 However, in connection with, say, resistance to the planned construction of mosques in predominantly Christian Western European cities, or open expressions of homosexuality in the military, what is at issue is not adequately captured by the core assumptions of the liberal model. Today, salient conflicts raising questions of toleration like these ones are typically between groups and not individuals, over ascriptive identities rather than about self-chosen beliefs, and in connection

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with asymmetries of status, social standing, and power rather than rival truth claims: “In other words, it is the exclusion or the unequal and incomplete inclusion of various groups into democratic citizenship which sharpen cultural differences. Issues of toleration break out when cultural differences, perceived by the majority as being at odds with societal standards, are publicly exhibited, implicitly claiming legitimacy.”21 The context of toleration invoked by the classical view, then, trades on a largely irrelevant understanding of pluralism because some differences such as race, ethnicity, and sexual orientation construct involuntarily disadvantageous identities to members of groups who, because of those identities, are marginalized, oppressed, and variously relegated to second-class status in what is supposed to be an egalitarian society. Because the liberal model of toleration misunderstands pluralism in this way, its purported solution to intractable disagreement – state neutrality between individual conceptions of the good life – is destined to fail. While there are many versions of neutrality currently on offer, the basic idea is simple: since people disagree about what’s valuable in life and how one ought to lead it in order to flourish, the state should avoid taking sides by not invoking contested moral, religious and ethical ideas; instead, democratic law and public policy should be based upon shared values that cannot be reasonably rejected – liberty, equality, fairness, security, the rule of law, and so on. For example, in John Rawls’s famous construction of the constitutional point of view in a democracy – the Original Position – all citizens are treated equally and there are no second-class citizens partly because occupants of that position do not know anything about their fundamental ethical, moral, and religious convictions and so therefore cannot tailor the principles of justice to advance such convictions.22 Notice, however, that this strategy of safeguarding equal freedom through non-discrimination and the relegation of contested individual beliefs and practices to the private sphere ignores the real world power and status asymmetries between members of majority and minority groups that both construct and reflect inclusion and exclusion. In sum, neutrality is a component of liberalism’s distributive paradigm: toleration is paradigmatically

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about the fair political treatment of differences, and fairness requires the privatization of unorthodox individual choices. But if questions of toleration principally arise when members of excluded groups resist their second-class status by challenging their public invisibility and marginality, anti-perfectionism is likely to reinforce rather than remedy the problem.23 Prime Minister Justin Trudeau has recently suggested that a Canadian commitment to diversity requires us to “go beyond tolerance.” Toleration is intimately linked with disapproval: X is said to tolerate Y if and only to the extent that X objects to some aspect of Y’s beliefs and/or practices. As one commentator has noted, that “negativity seems at odds with the mood of our times.”24 However, the problem isn’t simply a dispositional one such that a basic commitment to mere toleration clashes with Trudeau’s promise to govern with “sunny ways.” At a conceptual level, there also seems to be something fundamentally incoherent about contemporary deontological liberalism’s attempt to represent state neutrality between conceptions of the good life as an extension of earlier classical models of toleration. Public reason liberalism25 is “in part a conception of how toleration should be realized under contemporary conditions of democracy and diversity.”26 To some,27 this representation is fraudulent because not only is neutrality not plausibly an improvement over classical toleration as a response to diversity; the two are, in fact, conceptually incompatible, and for two related reasons. First, the neutral state remains detached from and stands above its citizens’ conflicting perfectionist ideals: as an impartial third-party, then, the state neither endorses nor disapproves of citizens’ justicerespecting beliefs and practices. But this third-party normative abstinence seems to entirely pre-empt questions of toleration – if as a matter of basic justice the state must remain in some sense ethically impartial, then on what grounds can it object to its citizens’ controversial beliefs and practices? And if it cannot object to those beliefs and practices, it seems as though talk of toleration is entirely otiose. Second, liberal democracy guarantees individuals an extensive and identical scheme of familiar civil and political liberties, so we cannot

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suppose that majorities “tolerate,” say, a minority’s religion, lifestyle, or sexual orientation – equal rights antecedently place such matters beyond the scope of legitimate democratic decision making. In sum, while the classical context of toleration is hierarchical and judgmental, democracy is supposed to be egalitarian and agnostic across the very sorts of thorny issues that incline people to heated disagreements. This means that while what democratic government owes its citizens looks somewhat like toleration, in the absence of a more complicated but also compelling story, appearances must be deceptive: we cannot tolerate ourselves and we cannot rightfully condemn what is ultimately none of our business. Democratic toleration, especially in its neutralist guise, is therefore a “rubber duck.”28 So far, we have seen that the classical view of toleration appears in trouble on multiple fronts: the context of toleration reintroduces hierarchy in a setting that’s meant to be egalitarian, and it also invokes an overly reductive picture of pluralism; and a neutralist political morality can’t consistently retain an objection component of the kind that’s required if we are to speak of toleration at all. Unfortunately, there is also a problem with the acceptance component of the classical view when it is deployed in contemporary, that is to say, democratic circumstances. Recall that in order for us to distinguish toleration from both indifference and powerlessness on the one hand and an unprincipled modus vivendi, or pragmatic truce, on the other, we must appeal to some higher-order value or principle that, on balance, inclines us towards self-restraint rather than repression despite our lingering objections to other people’s beliefs and behaviours. During toleration’s career over the last several hundred years, a number of justificatory theses have been advanced. For example: there is no way to know which beliefs are true or not; moral and ethical values are plural and incommensurable; the most important value is personal autonomy; somewhere and somehow, there is a plausible distinction to be drawn between what we have reason to believe ourselves and what we may rightfully claim to have reasonably justified to others. Each line of argumentation yields a different story about why toleration is required and also about when toleration runs out such that beyond the limits identified in that story intolerance is permissible and sometimes even required.

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Whatever meta-value is invoked to justify restraint rather than intolerance, then, makes the conception of toleration that is premised upon it “normatively-dependent.”29 However, this dependence generates what has been variously called the “paradox of foundational tolerance”30 or the “dilemma of political toleration.”31 Suppose that a regime of toleration is undergirded by the value of personal autonomy: the state must then protect minority beliefs and practices from unlawful majoritarian interference because all individuals are supposed to have a fundamental interest in being able to frame, pursue, revise and, at times, even abandon a conception of the good life. On this view, toleration is a requirement of justice because within the boundaries established by people’s interests in personal autonomy, political interference undermines their abilities to lead ethically valuable lives. But then toleration appears to be caught on the horns of a dilemma. Even if the value of personal autonomy does successfully distinguish toleration from indifference and a modus vivendi, in a democracy that protects people’s civil and political liberties, that value will also be vigorously contested, and even among people who do all subscribe to it, there will be disagreements about what personal autonomy requires in practical terms. In the example that we are now contemplating, how are we to interpret disagreements about the value of personal autonomy and about the corresponding limits to toleration in light of that justification? Either we accept that there can be reasonable disagreements about those questions too, in which case there is little reason to expect mutually acceptable and therefore binding limits to toleration, or we conclude that there cannot be reasonable disagreement about questions of justice in this way, in which case the two-stage justificatory structure (objection versus acceptance components) collapses with the result that there are only things that we ought not to object to and things that we ought not to tolerate. Depressingly, on either assumption, toleration is impossible. Some defenders of toleration32 try to resist this conclusion by reminding us of the distinction between universal moral principles and particular ethical values. While controversial ethical ideals like personal autonomy may be reasonably rejected and are therefore inadmissible as bases for law and public policy in a democracy, universal moral

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principles such as the “right to justification”33 are supposedly not. If this distinction were sound, then the paradox of foundational toleration would be a mirage. However, in the context of disagreements about when toleration is required and why, invoking the familiar contrast between the right and the good is entirely question-begging: “the distinction between morality and ethics may be the result of a doctrine of toleration rather than a ground for it.”34 3 Is there a way of modifying the traditional understanding of toleration in a non-judgmental and egalitarian direction, such that it is both appropriate to contemporary circumstances and consistent with neutralist liberalism’s core principles of, say, ethical impartiality and publicity? A number of years ago Charles Taylor proposed that, in order to meet people’s fundamental identity-based interests, a democratic society must extend to all its citizens something he called “equal recognition.”35 The proposal invited two questions: first, why recognition? That is, in light of which need, property, or capacity does the demand for recognition arise? Second, recognized how and by whom? That is, what counts as an instance of recognition? Taylor’s neo-Hegelian story about identity is complicated and tricky but, at bottom, it reduces to the claim that individual personality and, in turn, agency is the product of ongoing and mutually constitutive dialogue between ourselves and others: we become who we are and understand ourselves in the way that we do partly from communicating with but also from internalizing the expectations and viewpoints of others.36 This dialogical thesis about the constitution of personal identity at times renders us vulnerable to misrecognition, which arises when others impose “false” or “distorted” identities37 upon us. When this happens, we are disrespected and wronged in morally and politically relevant ways: “misrecognition shows not just a lack of due respect. It can inflict a grievous wound, saddling its victims with a crippling self-hatred. Due recognition is not just a courtesy we owe people. It is a vital human need.”38 Because non-recognition and/or misrecognition constitute wrongs, and be-

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cause people’s identities are supposed to be embedded within horizons of meaning supplied by the cultures to which they belong, a democratic society committed to equal respect for all its citizens must “recognize the equal value of different cultures.”39 In order to satisfy our generic human need for “recognition,” then, the state’s law and public policy must presume40 the equal worth of our cultures. As critics have pointed out, this “identity model”41 of recognition suffers from a series of disabling flaws. Less subtle versions of the argument tend to reify culture and assign each individual to a single culture notwithstanding the fact that “most individuals in modern societies belong to groups of many different kinds; they participate in practices, customs, and traditions of very different provenance; and they have tastes, interests, and affinities in common with different sets of people.”42 More sophisticated versions of the argument rightly disavow the kind of cultural “essentialism” that repudiates our overlapping and therefore protean identities. However, in one way or another, on some level, they all must invoke what Kwame Anthony Appiah43 has called cultural “scripts,” that is, norms or models that people use in shaping their life plans and telling their stories. Of course, some cultures will be less thoroughly scripted than other ones, but none of them can be endlessly elastic. Otherwise, the boundaries between cultural groups become too fuzzy for the recognition project to get off the ground. And while scripts do anchor us, they also have the potential to undermine our autonomy: “the large collective identities that call for recognition come with notions of how a proper person of that kind behaves.” If Appiah is right, the politics of recognition will often require that, for example, people’s religion, skin colour, or sexual body, should be acknowledged politically in ways that will make life difficult for people who, for whatever reason, want to treat such things as personal dimensions of the self. So there is something deeply problematic about the identity model of recognition when it is deployed within contemporary liberal theories of justice. On the one hand, if the model is invoked within the context of a perfectionist liberalism that values personal autonomy as an essential ingredient of human well-being, then whether or not the

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state should recognize people’s cultures clearly should depend upon the extent to which those cultures’ constitutive “scripts,” as Appiah calls them, enable or frustrate well-being so understood, and there is zero reason to believe that different cultures will fare equally well on that score. Remember that, for Taylor, the state’s presumption of the equal worth of all cultures is simply that – a defeasible presumption. On the other hand, if the identity model of recognition is deployed in the context of an anti-perfectionist liberal theory, it’s hard to see how the public/political valuation of the worth of people’s cultural attachments is consistent with the injunction to avoid pronouncing upon citizen’s contested beliefs and practices: the presumed equal worth of different cultures will certainly be contested by members of the various cultures, themselves, and the state’s embedding of that presumption in law and public policy overrides rather than respects people’s own fundamental convictions. The state tells me that, as a Roman Catholic, my religious beliefs are as respect-worthy as those of a Protestant, who I assume is going to hell. And it has to tell me this without transgressing the limits of public reason. Clearly, in order for equal recognition to be consistent with liberal neutrality, it cannot be the value of people’s substantive cultural beliefs and practices that grounds the state’s duty to recognize. But if not that value, then what? Anna Elisabetta Galeotti44 and Alan Patten45 have both tried to square this circle by reimagining toleration as equal recognition, and in a way that’s supposed to circumvent the identity model’s infelicities. On this alternate “status model,”46 equal recognition is something that the state owes its citizens as a remedy for social injustice, rather than in order to satisfy a fundamental psychic human need, and the argument for toleration so understood is meant to be grounded upon recognizably liberal principles of justice – for example, non-discrimination, equal opportunity, and inclusion. The basic move at work here is to reframe what might mistakenly seem like foundational identitybased claims for recognition into justice-based ones for fairness, on some suitably expanded conception of the distributive paradigm. So while it’s true that the envisaged recognition does render identity – and especially cultural identity – a relevant metric for social and dis-

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tributive in/justice, its goal is neither the preservation of particular cultures nor the stabilizing of individual identity for its own sake but, rather, to remedy historical and ongoing disadvantage partly generated via non- and misrecognized identities. Galeotti argues that the state’s symbolic public acceptance of minority practices can remedy past injustice without transgressing the limits of liberal neutrality; and Patten claims that, far from ruling out the equal recognition of cultures, a commitment to state neutrality between conceptions of the good life actually entails it. Galeotti claims that when a group – say, homosexual people, Jewish people, or Black people – has suffered a history of oppression, invisibility, humiliation, and exclusion, justice requires that their difference needs to be “positively accepted as a normal option within the mainstream of a pluralistic society.”47 How can this demand for positive acceptance be reconciled with state neutrality? For Galeotti, when the state recognizes difference, it is not pronouncing upon the intrinsic value or worth of the minority beliefs or practices in question; rather, public/institutional recognition more modestly means the symbolic acceptance and therefore the inclusion of “a different trait, behavior, practice, or identity in the range of the legitimate, viable, ‘normal’ options and alternatives of an open society.”48 Toleration as recognition is therefore content-independent and so it does not run afoul of the liberal state’s avowed ethical neutrality. Two features of Galeotti’s theory of toleration are worth emphasizing here: first, unlike the classical doctrine that entailed state non-interference with minority beliefs and practices in non-public spheres, toleration as recognition proposes to extend state deference to those beliefs and practices beyond the private sphere into public spaces such as schools and the military. Aside from this spatial extension from private to public, toleration as recognition also eschews both the condemnatory quality of the classical doctrine and its associated interpretation of toleration as non-interference. For Galeotti, toleration as recognition involves “positive”49 and “public acceptance.”50 Examples of such symbolic recognition include: the revision and expansion of canonical texts in public schools to include the history, literature, and arts of racial, sexual, and ethnic minorities,

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among others; changes in the offerings at school cafeterias to accommodate the dietary requirements of, say, Muslims, Jews, Buddhists, and vegetarians; changes in the timing of standard work schedules and public holidays; and, finally, ending the legal and cultural hegemony of the monogamous, heterosexual, and married couple at the foundation of society’s idea of the family.51 Such changes are meant to remedy the status and material disadvantages of various minorities who, absent such recognition, will continue to be marginalized from the broader social, political, cultural, and economic life of their community. Because second-class membership of this kind is inconsistent with the democratic ideal of free and equal citizens, the remedy for it – toleration as recognition – is publicly justified: symbolic toleration does not entail a positive and public value judgment about the worth of various minority beliefs, practices, and identities; it simply vindicates the social and political worth of their bearers as civic equals. As Galeotti writes, “Toleration as recognition is presented as an appropriate reinterpretation of neutrality and as a further step toward the fulfillment of the ideal of equality of respect which I hold to be a fundamental trait of a decent and just society.”52 Whereas for Galeotti neutrality operates as a kind of side-constraint upon the state’s recognition-based law and policy (recognized differences, that is, cannot: be substantively evaluated; infringe the rights of third-parties; or generate distributive unfairness), for Alan Patten, by contrast, equal recognition is an implication of an innovative understanding of neutrality itself: “the strong, if not indefeasible, reasons that a state has to extend neutral treatment to conceptions of the good are also strong, if not indefeasible, reasons for extending equal recognition to the different cultures with which its citizens are affiliated.”53 Let’s see how Patten establishes these linkages. Patten begins by articulating and defending a by now relatively familiar conception of liberal political morality. On that conception, the liberal state’s fundamental obligation is to treat all its citizens with equal concern and respect, and it must be equally responsive to each of their interests. Patten further supposes that an important interest of

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all persons is what he calls “fair opportunity for self-determination.”54 Following Ronald Dworkin’s55 “endorsement constraint,” Patten supposes that, normally, intrinsically valuable goods and activities will not make someone’s life go better unless such things “figure in some positive way in the person’s conception of the good.”56 So the standard way of advancing people’s well-being is to allow them to pursue and enjoy the conception of the good they happen to have; the standard way of thwarting that well-being is to frustrate their self-determination, so understood. Given the links between self-determination and wellbeing, the liberal state has a pro tanto reason to adopt policies that leave each of its citizens a fair opportunity for self-determination. Patten’s conclusion is that departures from what he calls “neutrality of treatment”57 involve denying holders of disfavoured conceptions of the good a fair opportunity for self-determination. How do we get from this to equal recognition for cultures? The answer is to be found in Patten’s particular understanding of what a culture is, and in how that understanding links identity to self-determination: “A distinct culture is the relation that people share when, and to the extent that, they have shared with one another subjection to a set of formative conditions that are distinct from the formative conditions that are imposed on others. Culture, in this proposal, is a kind of precipitate. At any given moment, its content consists in various beliefs, meanings, and practices, but what makes these the beliefs, meanings, and practices of a shared culture is that the people who hold them share a common social lineage.”58 Patten thinks that there are some areas of life where it’s vitally important that a person enjoy the opportunity to be self-determining. Some examples he mentions include: “developing and pursuing one’s own religious and moral outlook”; “intimacy, sexuality, and friendship”; “conscience”; “family”; and “artistic endeavour.” The state’s requirement for neutral treatment of conceptions of the good pertaining to these aspects of life must be especially robust, potentially even indefeasible, because they are identity-related and frame and inform virtually all other aspects of a person’s ends, attachments, and commitments. By contrast, in connection with non-identity

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related aspects of conceptions of the good such as people’s leisure and consumption preferences,59 neutrality of treatment is more easily relaxed and traded off against other political values. Patten defines recognition as a “customized form of accommodation of an identity-related component of a conception of the good”60 and, given his particular understanding of culture and of the centrality of identity therein, it is not hard to see why he thinks that if we are to equalize people’s opportunities for self-determination, equal recognition of their cultures must follow. Cultures matter to their members because they typically constitute and frame the identity-based options that individuals have, or do not have, at their disposal: “the options available to people are worse when their culture is faring poorly than when it is doing well, and the point of strong cultural rights is to prevent the worsening of options.”61 When the state recognizes minority beliefs and practices through customized and identity-based forms of accommodation, then, it is not trying to preserve cultures, or to insulate them from external pressure and internal change; rather, given the centrality of identity to self-determination, the state is trying to be fair in securing equal opportunity for well-being between the individuals comprising various minority and majority cultures. 4 As a reimagining of the classical view, the case for toleration as equal recognition suffers from at least three sets of problems: its foundations in the value of personal autonomy both distort typical identity-based demands and also threaten to undermine equal recognition as a legislative or policy output; the generalization from religious and then moral disagreement to cultures confuses descriptive sociological facts with normative justificatory structures and, in doing so, mistakenly implies that the state has an (impossible) obligation that it, in fact, does not have; and, finally, equal recognition appears to equivocate unsteadily between a weaker version that respects deep pluralism but leaves social markers of disadvantage and marginalization largely untouched and a stronger version that, while it addresses the latter, also forfeits its

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liberal credentials in requiring not simply behavioural but also attitudinal transformations of a kind that, were they to eventuate, toleration would no longer be required at all. Liberal multiculturalism argues that we should be concerned with the fate of minority cultures because it is culture that makes available and confers value on the various activities that are open to people. In order to be free, then, people need secure cultural membership. In the absence of that security, the very freedom that liberals prize is endangered. As the most famous exponent of this view writes, “Liberals should be concerned with the fate of cultural structures, not because they have some moral status of their own, but because it’s only through having a rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value.”62 The thought is that the accommodation of identity-related differences – “recognition” for cultural minorities – can be derived from a quintessentially liberal theory of equal freedom. Examples of such recognition might include: exemptions from generally applicable laws for religious reasons; funding for minority language schools; recognition of traditional legal codes by the dominant system; limited selfgovernment rights; and so on. However, consider the stark discontinuity between the culturebearers, themselves, who demand recognition, on the one hand, and the theory that processes the demand, on the other: minority rights claims arise precisely because, and to the extent that, the values, ideals, and commitments of the dominant culture threaten to erode their own. If this was not the case, those claims would be pointless. This implies that for minority culture-bearers, the idea is typically to constrain individual and collective choices so that particular values, ideals, and practices persist, despite majoritarian counter pressure. The autonomy-based argument for recognition puts the emphasis in the wrong place – on freedom rather than identity.63 If human beings have a right to culture,64 the asserted right pertains not to just any secure cultural structure, but to one’s own. Framing culture as a context of choice obscures rather than clarifies what demands for recognition are about.

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If cultural loss is a bad, this is primarily because identity and tradition, not freedom, are being compromised. Seeing this clearly brings a particularity problem into focus. If members of a struggling minority culture cannot access an adequate range of options to be meaningfully autonomous, why can’t they simply access instead the options of the dominant/majority culture? We might imagine two reasons why not: first, because even if there is a single set of options that’s available, in some sense, for everybody, those options are less accessible to the minority than they are to the majority; second, because the options from the majority menu, while available in principle to all, are unequally adequate between members of the majority and minority, depending upon their differing preferences, beliefs, and values. The first reason focuses on differential access; the second upon differential adequacy. As Alan Patten has recently shown, though, such an optionsdisadvantage account of cultural loss is caught on the horns of a dilemma: “Options disadvantage occurs either because of differential access, in which case the account will often be insufficient to show why the state ought to extend cultural rights to vulnerable cultures rather than more fully integrating them into the dominant culture, or because the majority’s options are inadequate for the minority, in which case the account does not go far enough in explaining why options disadvantage should elicit significant moral concern.”65 Equal recognition is supposed to evade this dilemma by shifting away from welfare-based claims about the badness of cultural loss towards the fair treatment of individual culture-bearers. But the price of this move is high. The autonomy-based argument for recognition is likely to be unneeded in circumstances that satisfy it, and useless precisely where it is needed most. If the practices, values, and beliefs of a particular cultural minority are broadly speaking in alignment with the liberal commitment to personal autonomy – that is, if they accord significant weight to the value of a self-directed life – then it’s unlikely that recognition will arise as a demand: there isn’t any fundamental tension to be accommodated. If those practices, values, and beliefs do contravene the value of personal autonomy in ways that threaten to subvert, say,

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people’s basic civil and political rights, then the argument justifies intolerance – non-recognition. While there might be pragmatic or political reasons for restraint, there certainly aren’t any justice-based ones. Approaching the same point from a different direction, we notice that linking demands for recognition to the value of self-determination has the potential to undermine equal recognition of cultures precisely because there is no reason to suppose that all cultures will be equally hospital to self-determination. Recall that, for Patten, it is because we have a fundamental interest in self-determination that the state has a responsibility to safeguard that interest for all citizens on equal terms. Cultural neutrality, that is, is an implication of fairly distributed well-being, with well-being characterized by our capacity for selfdirection. Remember Appiah’s warning about cultural “scripts”?: the identities that call for recognition come with notions of how “a proper person of that kind behaves.” This implies that identities and interests will often intersect in all sorts of complicated ways: for some individuals, the culture with which they identify, or with which other people identify them, will be central to their interest; other individuals will derive their sense of self from a web of overlapping cultural affiliations; finally, at times, some people might have basic interests in rejecting their cultural identities, especially when they arise from ascriptive characteristics associated with unequal status. However, the politics of identity “is not neutral between these three groups, it favors the first and disfavors the second and third.”66 If equal recognition is justified by reference to self-determination, then, why isn’t this whole argumentative strategy doomed at the outset? Whether or not a cultural minority is deserving of recognition should depend upon whether or not its constitutive scripts enlarge or subvert personal autonomy, and also upon the extent to which individuals within cultures identify with their dominant scripts. Clearly, an autonomy-based justification of toleration presupposes a contested ethical ideal and so, at least initially, we might wonder whether it makes sense to think of such a justification as a meaningfully neutral one. That problem can be avoided by describing neutrality as a “downstream value”67 so that the theory does not have to be

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embarrassed by the fact that it’s not entirely value free. But it is a seemingly insurmountable problem for the equal recognition of cultures that those cultures will be differently supportive of self-determination because, without that absurd supposition, there is no reason for the state to treat such cultures neutrally. There is a structural incoherence at work here: equal recognition is supposed to be compatible with state neutrality between competing ethical ideas because self-determination operates as a downstream value – because self-determination justifies neutrality, the state does not have to be neutral about that value. But the fair treatment of cultures also presupposes an egalitarian baseline, that is, a metric in light of which people’s opportunities for self-determination can be compared, and that metric cannot be content-independent: it must specify the kind of self-determination that contributes to well-being and, pro tanto, the state should only recognize cultures that enable such well-being. Equal recognition generalizes the traditional liberal response to religious and then subsequently ethical and moral disagreement more broadly – in the contemporary jargon, to “conceptions of the good” – to cultures. On this view, cultural recognition is a customized form of accommodation of an identity-related conception of the good life, and it’s designed to restore fairness between members of majority and minority cultures. The state fails in its obligations of distributive fairness towards its citizens when, relative to an appropriate baseline, its policies are more accommodating of some conceptions of the good than they are of others. I think we should reject the proposed extension of neutrality from conceptions of the good life to cultures, and for at least three reasons. First, while it’s probably too strong of a claim to say that the politics of recognition must necessarily rest on implausibly essentialist conceptions of culture – that is, there simply are relatively fixed and discrete cultures and each person belongs to one – that form of politics does tend to downplay the inherently political dimension of collective identity, and in a way that threatens to render the enterprise viciously circular: “The most seductive and dangerous move in politics is that move which asserts identity to be not political but, somehow, natural

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or original. But identity is not natural, or original, or permanent, or even necessarily particularly enduring. It is fluid, ever-changing (to varying degrees), and inescapably political.”68 Cultural communities, then, like other social groups do not exist prior to or independently of legal and political institutions; they are themselves strongly shaped by those institutions. As Samuel Scheffler has noticed, “there is no surer way to make a particular form of group affiliation a dominant feature of individual identity than for the state to make it the ascriptive basis for the assignment of legal status.”69 While it’s unclear precisely what this fact implies about the plausibility of any given demand for cultural rights, that the state is being asked to respond neutrally between cultural identities that are (partly) of its own creation complicates things in unhappy ways. Second, the proposed extension of neutrality to the case of cultural minorities also seems to rest upon a confusion between two different kinds of thing – justificatory structures versus common practices/ conventions – that call for different sorts of response. Early modern arguments for religious toleration implied that in the context of incompatible and ultimately irresolvable disputes about the nature of salvation, social order dictated bracketing religious questions from the justification (and scope) of state power. Twentieth-century liberals like Rawls and Dworkin noticed that moral and philosophical ideals that define a flourishing human life share one important feature with religious controversies of the kind that preoccupied Locke – namely, that they also assert incompatible and therefore rival truth claims thought to bind one’s conscience and guide one’s choices. In sum, the special status of moral, religious, and philosophical convictions derives from their role as perceived sources of normative authority: “To describe these convictions as convictions is to say that those who hold them believe them to be true. And to describe them as convictions about how to live is to say that those who hold them see them as providing reasons for action … In that sense, morality, religion, and philosophy are perceived sources of normative authority.”70 As Scheffler points out, “cultures are not in the same sense sources of normative authority, for they are not explicitly justificatory structures

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at all.”71 So while norms and values are important aspects of all cultures, this doesn’t mean that their role is parallel to the role of moral, religious, and philosophical doctrines. There isn’t any need for a culture to adopt a uniform normative outlook, which is often why many cultures exhibit a high degree of moral, religious, and philosophical diversity.72 When we say that something is a moral, religious, or philosophical value, we’re saying something about the kind of authority its adherents take it to have. By contrast, when we’re saying that something is a cultural value, rather than identifying a justificatory structure, we’re indicating that a certain group of people subscribes to it. We can approach the same point from a different direction. If cultures are sufficiently alike conceptions of the good life, or if as the culturalists suppose, those conceptions are inextricably embedded within particular cultures, then state recognition of cultures on equal terms is a conceptual impossibility. That is, if the problem of cultural accommodation is structurally identical to the problem raised by religious conflict, recognition is impossible – cultural differences could be privatized or relegated to the non-political domain of civil society; in this sense, those differences could be tolerated. But equal “recognition” for different cultures would be out of the question because, as with religious beliefs, they would invoke different justificatory structures and embody rival truth claims: “if cultures encompass people’s beliefs about what is true and right, those within a particular culture must believe that the conflicting beliefs of a different culture are false a wrong.”73 What sense, then, does it make to suppose that the state has a duty of recognition that is neutrality-based here? In fact, one of the longest-standing challenges to the doctrine of liberal neutrality has been that it makes no sense in relation to culture. Here is Will Kymlicka on this point: “the state cannot help but give at least partial establishment to a culture when it decides which language is to be used in public schooling or in the provision of state services.”74 The same can be said for public holidays, state symbols, and so on – all partially establish a culture and to the extent that this is so, it’s hopeless to urge neutrality in the cultural domain. This is all true, but also of no

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embarrassment to the neutralist cause because, as I’ve just mentioned, cultures are not like conceptions of the good life, and also because the neutrality constraint is meant to be invoked downstream, as it were, from the national culture itself that reflects and sustains the institutions and policies of the liberal-democratic state.75 The final set of problems with equal recognition pertains to what we might call the supposed site76 of recognition-based justice. As we saw above, principally, what motivates toleration as equal recognition is the thought that familiar contemporary theories of liberal neutrality do not adequately capture what cultural and other minorities are owed as a matter of social and distributive justice. So, for example, state anti-perfectionism, equal civil and political liberties, freedom from discrimination in the economy, and range of programs and policies that aim at what Rawls calls “fair equality of opportunity”77 do not adequately guarantee minorities full social and political inclusion and participatory parity, which is what democracy requires. Equal recognition is meant to bridge this inclusion/participation deficit in standard liberal accounts of justice. As several critics78 have pointed out, however, there is a fundamental indeterminacy as to where recognition is to occur and by whom? Recall that the classical doctrine’s privatization strategy – relegating conflicting beliefs and practices to the private sphere – was deemed inadequate partly because, for the advocates of equal recognition, the primary causes of exclusion and marginalization are typically social ones: gender bias, racism, stigmatization, prejudice, and so on. So the analytical starting point is a supposition that public toleration – symbolic inclusion by the state of minority beliefs and practices as tolerable because within the normal range – will not be sufficient to ensure social, economic, and political participatory parity between members of the majority and the various minorities left behind by the status quo. Indeed, on a purely institutional conception of publicity “there is no exclusion since all members of society are formally included as citizens.”79 If equality of status for all is to be secured, then, we need to move beyond the state and its various institutions as the

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agent expressing public recognition: somehow, in addition to law and public policy that expresses equal regard for everyone, the majority’s attitudes and beliefs towards minorities throughout civil society must be changed so that the latter are positively regarded. On the one hand, then, a purely institutional conception of recognition fails to take seriously sub-political/non-public forms of discrimination and associated disadvantage. On the other, requiring a background ethos of mutual esteem throughout civil society seems not only hopelessly optimistic; it also contemplates the transcendence of deep disagreement that generates questions of toleration in the first place: The question of whether there can be “toleration as recognition” and, if so, what form it can take, is not merely one that concerns the compatibility of the concepts of toleration and recognition. More importantly, it is a question about what we can reasonably demand of people who live in diverse societies and who take exception to one another’s identities … If we seek mutual recognition of identities and if Muslims and gays are present in the same society, what must we demand? We must demand that Muslims accord recognition to gays as gays. But is that reasonable? Given the way in which homosexuality is regarded within orthodox Islam, how can we expect Muslims as Muslims to accord recognition to gays as gays?”80 Once we move away from equal recognition as institutional symbolism and towards the wholesale reconstruction of societal attitudes as a demand of democratic justice, we have resurrected a version of Taylor’s esteem/identity model of recognition but couched it in the language of “status.” In the end, we are asking, nay, compelling, people to value beliefs, practices, and identities at odds with their own fundamental moral, religious, and philosophical ideals. It’s hard to imagine how that kind of demand can sit comfortably either with liberalism as a political tradition committed to respecting people’s conscientious convictions or with toleration, a strategy for putting up with, rather than altogether transcending disagreement.

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Conclusion This chapter has tried to clarify what is at issue between the classical doctrine of toleration and some of its recent critics. Some of those critics have proposed equal recognition as the conception of toleration most fitting for contemporary democratic times. If the following analysis is sound, the proposal is mostly a dead end. Because disagreement is a permanent feature of social and political life, thinking that we can move beyond toleration is a dangerous fantasy. However, the concerns motivating equal recognition are genuine and so it is imperative that we continue to rethink the classical doctrine of toleration. While it’s beyond the scope of the present study to vindicate that doctrine from the sorts of criticisms surveyed above, let’s end by only hinting at a more promising path forward. Part of the reason for thinking that the advent of democracy heralded the end of toleration’s career is that once society is conceived of in egalitarian terms, there’s no obvious democratic analog to the unconstrained sovereign: under a scheme of equal civil and political rights, for reasons canvassed above, it seems like no one is in a position to tolerate anyone else. Perhaps, though, the mistake lies in assuming that toleration requires a tolerator? Instead of trying to locate a tolerant ruler in a democracy, then, we might instead explore the idea of a tolerant society. Such a society “secures a state of affairs in which A is unprevented from doing x by intolerant others. It is tolerant not because it provides an arena within which people can engage in acts of toleration but because it holds intolerance at bay.”81 On this view, toleration isn’t a function of the personal qualities of either a society’s population or of its ruler; rather, toleration is a property of a society’s rules. Is there a way of thinking about such rules that also evades the paradox of foundational tolerance? Samuel Scheffler has recently suggested that living under familiar liberal arrangements enforces a kind of mutual deference to one another’s values and that, far from frustrating our ability to translate our personal convictions into action, a regime of toleration ultimately realizes a particular kind of solidarity. Toleration, that is, “gives concrete social

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expression to a compelling but abstract idea: the idea of an otherwise diverse group of people who are united by the common experience of confronting the normative and evaluative dimension of human life.”82 Further reflection upon how the constitutive rules of a tolerant society might both reflect and sustain an innovative ideal of belonging in this way would take us a long way from mere toleration. We might finally achieve a stable form of political community that takes both identity and disagreement seriously. Notes 1 “Liberalism, which has many parents … should be regarded as a child of toleration, as an important stage in the ongoing discourse of toleration. Liberalism is a late arrival in this discourse, though an extremely successful one. However, it by no means represents the culmination of this discourse, for its justification of toleration is neither the only nor the most consistent one” (Forst, Toleration in Conflict, 171). 2 Williams, “Toleration, a Political or Moral Question?” 3 Edyvane and Matravers, “Introduction.” 4 Forst, Toleration in Conflict; Galeotti, Toleration as Recognition; Patten, Equal Recognition. 5 Patten, Equal Recognition, 158. 6 Horton, “Why the Traditional Conception of Toleration Still Matters.” 7 Horton, 290. 8 Forst, Toleration in Conflict. 9 Ibid., 18. 10 Ibid. 11 Ibid., 21. 12 Ibid. 13 Ibid., 24. 14 Edyvane and Matravers, “Introduction,” 282. 15 Horton, “Why the Traditional Conception,” 290. 16 Scheffler, Equality and Tradition, 315. 17 Paine, 74. 18 Forst, Toleration in Conflict, 28. 19 Jones, “Making Sense of Political Toleration.” 20 Patten, Equal Recognition, 169.

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21 Galeotti, Toleration as Recognition, 6. 22 Rawls, A Theory of Justice. 23 “Public blindness is insufficient because the constitutional reasoning from which it result assumes a hypothetical situation of undifferentiated pluralism in which, in order to ensure equal justice, all asymmetries are ignored on principle, and which a fortiori the distinction between ‘normality’ and ‘difference’ is necessarily lost … the distinction between the normal range of traits and options and what differs from it is precisely what defines inclusion and exclusion in a society. This goes beyond a mere unequal distribution of costs and benefits in that it is what defines full and second-class membership” (Galeotti, Toleration as Recognition, 60). 24 Jones, “Toleration, Recognition, and Identity.” 25 Gaus, The Order of Public Reason; Larmore, The Morals of Modernity; Lecce, Against Perfectionism; Rawls, Political Liberalism; Quong, Liberalism without Perfection. 26 Jones, “Toleration,” 402. 27 Newey, Virtue, Reason, and the Politics of Toleration. 28 Ibid. 29 Forst, Toleration in Conflict. 30 Scheffler, Equality and Tradition, 317. 31 Forst, Toleration in Conflict, 375. 32 Ibid. 33 Ibid. 34 Laegaard, “Toleration out of Respect?,” 532. 35 Taylor, “The Politics of Recognition.” 36 Taylor, “What’s Wrong.” 37 Taylor, Reconciling, 25. 38 Ibid., 26. 39 Ibid., 64. 40 “It is reasonable to suppose that cultures that have provided the horizon of meaning for large numbers of human beings, of diverse characters and temperaments, over a long period of time – that have, in other words, articulated their sense of the good, the holy, the admirable – are almost certain to have something that deserves our admiration and respect, even if it is accompanied by much that we have to abhor and reject. Perhaps one could put it another way: it would take a supreme arrogance to discount this possibility a priori” (Taylor, “The Politics of Recognition,” 73–4). 41 Fraser, “Recognition without Ethics?” 42 Scheffler, Equality and Tradition, 99.

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Appiah, The Ethics of Identity. Galeotti, Toleration as Recognition. Patten, Equal Recognition. Fraser, “Recognition without Ethics?” Galeotti, Toleration as Recognition, 177. Ibid., 15. Ibid., 69. Ibid., 117. Ibid., 200. Ibid., 228. Patten, Equal Recognition, 156. Ibid., 131. Dworkin, “The Foundations.” Patten, Equal Recognition, 131. “The state violates this requirement when, relative to an appropriate baseline, its policies are more accommodating of some conceptions of the good than they are of others … If the state adopt some policy that can be expected, in conjunction with other necessary inputs, to make a particular conception of the good more successful, then, in my terminology, its policy is ‘accommodating’ toward that conception. To maintain neutrality, when the state pursues a policy that is accommodating (or unaccommodating) of some particular conception of the good, relative to the appropriate baseline, it must adopt an equivalent policy for rival conceptions of the good. Neutrality of treatment means the state’s policies must be equally accommodating of rival conceptions of the good” (ibid., 115). Ibid., 51. Ibid., 136. Ibid., 158. Ibid., 65. Kymlicka, Liberalism, Community, and Culture, 165. “It is not a demand for recognition of authenticity, or indeed of difference in any sense, but a demand for recognition of a substantive value, be it the value of a concrete conception of the good, cultural tradition, or religious belief and practice” (Cooke, “Beyond Dignity and Difference,” 79). Avishai and Halbertal, “Liberalism and the Right to Culture.” Patten, Equal Recognition, 72. Lukes, “Toleration and Recognition,” 221. Patten, Equal Recognition. Kukathas, The Liberal Archipelago, 90.

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Scheffler, “Immigration and the Significance of Culture,” 102. Ibid., 120. Ibid. Ibid. Jones, “Political Theory and Cultural Diversity,” 32. Kymlicka, Multicultural Citizenship, 111. “In enforcing the political culture, then, and so in shaping the broader national culture, the state will inevitably be enforcing a set of practices and values that have their origins in the contingent history and traditions of a particular set of people … The state can neither avoid promoting a national culture nor invent that culture ab initio” (Scheffler, “Immigration and the Significance of Culture,” 113). The following critical remarks are inspired by G.A. Cohen’s critique of John Rawls’s restriction of the principles of justice to what Rawls calls the “basic structure” of society. For Cohen, given the arguments that Rawls advances for the equal basic liberty and difference principles, the application of those principles cannot consistently be restricted to the basic institutional structure of society; such principles must also inform people’s sub-political attitudes and choices – what Cohen calls an egalitarian “ethos” – throughout the market and civil society generally. See Cohen, Rescuing Justice and Equality. Rawls, A Theory; Rawls, Political Liberalism. Jones, “Political Theory and Cultural Diversity”; Laegaard, “On the Prospects for a Liberal Theory of Recognition”; Laegaard, “Galeotti on Recognition as Inclusion.” Laegaard, “Galeotti on Recognition as Inclusion,” 304. Jones, “Toleration, Recognition, and Identity,” 141. Jones, “Making Sense,” 388. Scheffler, Equality and Tradition, 33.

Works by Richard Vernon

Books Commitment and Change: Georges Sorel and the Idea of Revolution. Toronto: University of Toronto Press, 1978. The Principle of Federation by P.J. Proudhon [translation, with critical introduction and notes]. Toronto: University of Toronto Press, 1979. Introduction reprinted in John Kincaid, ed., Federalism (Sage, 2011). Citizenship and Order: Studies in French Political Thought, 264. Toronto: University of Toronto Press, 1986. Porter, J.M., and Richard Vernon, eds. Unity, Plurality and Politics: Essays in Honour of F.M. Barnard. London: Croom Helm, 1986. The Career of Toleration: John Locke, Jonas Proast, and After. Montreal and Kingston: McGill-Queen’s University Press, 1997. (Awarded the cpsa ’s C.B. Macpherson Prize for the best Canadian book in political theory, 1996–98). Political Morality: A Theory of Liberal Democracy. London: Continuum (Political Theory and Contemporary Politics Series: launch volume), 2001. Friends, Citizens, Strangers: Essays on Where We Belong. Toronto: University of Toronto Press, 2005. Harrington, Joanna, Michael Milde, and Richard Vernon, eds. Bringing Power to Justice: Prospects of the International Criminal Court. Montreal and Kingston: McGill-Queen’s University Press, 2006. Esses, Victoria, and Richard Vernon, eds. Explaining the Breakdown of Ethnic Relations: Why Neighbours Kill. London: Blackwell (Social Issues and Interventions series: launch volume), 2008.

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Cosmopolitan Regard: Political Membership and Global Justice. Cambridge: Cambridge University Press, 2010. ed. Locke on Toleration. Trans. Michael Silverthorne. Cambridge: Cambridge University Press, 2010. Isaacs, Tracy, and Richard Vernon, eds. Accountability for Collective Wrongdoing. New York: Cambridge University Press, 2011. Historical Redress: Must We Pay for the Past? London: Continuum, 2012. Hannan, Sarah, Samantha Brennan, and Richard Vernon, eds. Permissible Progeny? The Morality of Procreation and Parenting. New York: Oxford University Press, 2015. Justice Back and Forth: Duties to the Past and Future. Toronto: University of Toronto Press, 2016. Jones, Charles, and Richard Vernon. Patriotism. Cambridge: Polity, 2018. Journal articles “Rationalism and Commitment in Sorel.” Journal of the History of Ideas 34 (1973): 405–20. Barnard, F.M., and Richard Vernon. “Pluralism, Participation and Politics: Reflections on the Intermediate Group.” Political Theory 3 (1975): 180–97. “The Secular Political Culture: Three Views.” Review of Politics 37 (1975): 490–512. “The Great Society and the Open Society: Liberalism in Hayek and Popper.” Canadian Journal of Political Science 9 (1976): 262–76. Reprinted in P. Boettke, Intellectual Legacies in Modern Economics (London: Elgar, 1999). Barnard, F.M., and Richard Vernon. “Socialist Pluralism and Pluralist Socialism.” Political Studies 25 (1977): 474–90. “Auguste Comte and ‘Development.’” History and Theory 17 (1978) 323–6. “Hayek’s Residual Platonism.” Canadian Journal of Political and Social Theory 2 (1978): 156–62.

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“Politics as Metaphor: Cardinal Newman and Professor Kuhn.” Review of Politics 41 (1979): 513–35. “Unintended Consequences.” Political Theory 7 (1979): 57–73. “The Disunity of Theory and Practice.” Canadian Journal of Political and Social Theory 4 (1980): 199–205. “Citizenship in Industry: The Case of Georges Sorel.” American Political Science Review 75 (1981): 17–28. “Freedom and Corruption: Proudhon’s Federalism.” Canadian Journal of Political Science 14 (1981): 775–95. Barnard, F.M., and Richard Vernon. “Recovering Politics for Socialism.” Canadian Journal of Political Science 16 (1983): 717–37. “Auguste Comte and the Withering-Away of the State.” Journal of the History of Ideas 45 (1984): 549–66. Vernon, Richard, and Samuel V. LaSelva. “Justifying Tolerance.” Canadian Journal of Political Science 17 (1984): 3–23. “The Political Self: Auguste Comte and Phrenology.” History of European Ideas 7 (1986): 271–86. “On Liberty, Liberty and Censorship.” Queen’s Quarterly 94 (1987): 267–85. “Toleration without Scepticism.” Studies in Political Thought 2 (1992): 47–57. “Locke’s Antagonist, Jonas Proast” Locke Newsletter [now Locke Studies] 24 (1993): 95–106. “John Stuart Mill and Pornography.” Ethics 106 (1996): 621–32. Reprinted in Vincent Blasi, ed., Ideas of the First Amendment (Paul, mn: Thomson, 2006). “Liberals, Democrats and the Agenda of Politics.” Political Studies 46 (1998): 295–308. “What Is Crime against Humanity?” Journal of Political Philosophy 10 (2002): 231–49. “Against Restitution.” Political Studies 51 (2003): 542–57. “Henri Bergson and the Moral Possibility of Nationalism.” Contemporary Political Theory 2 (2003): 271–88. “Challenging the Liberal Settlement.” University of New Brunswick Law Journal 55 (2006): 186–92.

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Works by Richard Vernon

“Compatriot Preference: Is There a Case?” Politics and Ethics Review 2 (2006): 1–18. “Contractualism and Global Justice: The Iteration Proviso.” Canadian Journal of Law and Jurisprudence 19 (2006): 345–56. Chinapen, Rhiana, and Richard Vernon. “Justice in Transition.” Canadian Journal of Political Science 39 (2006): 117–34. “Association by Obligation?” Political Studies 55 (2007): 865–79. “States of Risk.” Ethics and International Affairs 21 (2007): 451–69. “Humanitarian Intervention and the Problem of Internal Legitimacy.” Journal of Global Ethics 4 (2008): 37–49. Hannan, Sarah, and Richard Vernon. “Parental Rights.” Theory and Research in Education 6 (2008): 173–89. “Intergenerational Rights?” Intergenerational Justice Review 9 (2009): 8–12. “Is There A Global Harm Principle?” Critical Review of International Social and Political Theory 12 (2009): 1–18. “Pascalian Ethics: Bergson, Levinas, Derrida.” European Journal of Political Theory 9 (2010): 167–82. “Crime against Humanity: A Defence of the Subsidiarity View.” Canadian Journal of Law and Jurisprudence 26 (2013): 229–41. “Lockean Toleration: Dialogical Not Theological.” Political Studies 61 (2013): 215–30. “Regarding Cosmopolitanism.” Journal of International Political Theory 9 (2013): 92–100. “Evanescent and Embedded Agents.” Journal of Social Epistemology 6 (2017). “Toleration or Latitude? Two Models for Liberal Politics.” Canadian Journal of Political Science 50, no. 3 (2017): 663–78. Encyclopedia articles “Social Contract.” Encyclopedia of Democracy. Ed. S.M. Lipset. Washington, dc : Congressional Quarterly Books, 1995. 306–8. “Proudhon, Pierre-Joseph.” Encyclopedia of Philosophy. Vol. 7. Ed. Edward Craig. London: Routledge, 1999. 791–3.

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“Ideas and Ideologies in Politics.” unesco Encyclopedia. Oxford: eolss Publishers, 2002. “Historical Redress.” Routledge Encyclopedia of Philosophy, online update, 2007. “Crime against Humanity” and “Pornography.” Sage Encyclopedia of Political Theory, 2010. “Comte, Auguste.” Encyclopedia of Political Thought. Wiley, 2010. “The Religion of Humanity.” Encyclopedia of Utilitarianism. Continuum, 2013. “Political Morality.” Sage Encyclopedia of Political Behavior, 2017. Book Chapters “Introduction.” In G.D.H. Cole, Guild Socialism Restated, reprint by Transaction Books (Social Science Classics series), 1980, 5–61. “Moral Pluralism and the Liberal Mind.” In Unity, Plurality and Politics, edited by J.M. Porter and Richard Vernon, 143–61. London: Croom Helm, 1986. “The Federal Citizen.” In Perspectives on Canadian Federalism, edited by R. Olling and M. Westmacott, 3–15. Hoboken, nj : Prentice-Hall, 1988. “J.S. Mill and the Religion of Humanity.” In Religion, Secularization, and Political Thought, edited by J. Crimmins, 167–82. London: Routledge, 1990. LaSelva, Samuel, and Richard Vernon. “Liberty, Equality, Fraternity and Federalism.” In Challenges to Canadian Federalism, edited by M. Westmacott and H. Mellon, 30–9. Hoboken, nj : Prentice-Hall, 1997. “Beyond the Harm Principle.” In Mill and the Moral Character of Liberalism, edited by E. Eisenach, 115–31. Pennsylvania State University Press, 1998. LaSelva, Samuel, and Richard Vernon. “Censorship, Liberalism, Feminism and Pornography.” In Political Dispute and Judicial Review, edited by M. Westmacott and H. Mellon, 124–33. Toronto: Nelson, 1999.

298

Works by Richard Vernon

“Punishing Collectives: States or Nations?” In Accountability for Collective Wrongdoing, edited by T. Isaacs and R. Vernon, 287–306. New York: Cambridge University Press, 2011. “Cosmocitizens?” In Handbook of Cosmopolitan Studies, edited by G. Delanty, 316–25. London: Routledge, 2012. “Foreseeably Unforeseeable Risk.” In Sociology and the Unintended, edited by Adriana Mica, Arkadiusz Peisert, and Jan Winczorek, 371–82. Bern: Peter Lang, 2012. “The Protestant Ethic and the Spirit of Liberalism” and “A Critique of Liberalism, Universalism, and Liberal Democracy.” Both in Farsi, trans. Mojtaba Mahdavi. In Din va Ideology, ed. Ali Ghasemi, 279– 302, 303–26. Tehran: Cultural Foundation of Ali Shariati, 2013. “Bergson and Political Theory.” In Interpreting Bergson, edited by Alexandre Lefebvre, Cambridge University Press, forthcoming. “Consent.” In The Lockean Mind, edited by Jessica Gordon-Roth. London: Routledge, forthcoming. “Is Majority Rule Democratic?” In Studying Democracy, ed. Cameron Anderson and Laura Stephenson. Toronto: University of Toronto Press, forthcoming.

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Contributors

mira bachvarova is an assistant professor in Renaissance Col-

lege at the University of New Brunswick. She is the author of “SelfDetermination, Non-domination and Constraints on Territorial Rights,” Critical Review of International Social and Political Philosophy (2018).

kirsten j. fisher is an associate professor of political studies at the

University of Saskatchewan. She works on issues of post-atrocity justice and the politics of international criminal law. Some of her recent articles have been published in  International Criminal Law Review, Contemporary Political Theory, Journal of Modern African Studies, and Journal of International Political Theory.

sarah hannan is an assistant professor in the department of political studies at the University of Manitoba. She is author of “Why Childhood Is Bad for Children,” Journal of Applied Philosophy. neil hibbert is an associate professor and head of the depart-

ment of political studies at the University of Saskatchewan. He is coeditor of Applied Political Theory and Canadian Politics (University of Toronto Press).

charles jones is an associate professor in the department of po-

litical science at the University of Western Ontario. His books include Global Justice: Defending Cosmopolitanism  (Oxford University Press),

318

Contributors

The Rights of Nations (co-edited with Desmond Clarke, Palgrave Macmillan), and with Richard Vernon, Patriotism (Polity).

samuel v. laselva is a professor of political science at the University of British Columbia, Vancouver. His publications include Canada and the Ethics of Constitutionalism (McGill-Queen’s University Press, 2018) and “Indigenous Sovereignty, Canadian Constitutionalism, and Citizens Plus,” in Kate Puddister and Emmett Macfarlane, eds, Constitutional Crossroads (University of British Columbia Press, 2022). steven lecce is a professor of political theory at the University

of Manitoba. He is author of Against Perfectionism: Defending Liberal Neutrality (University of Toronto Press) and co-editor of Fragile Freedoms: The Global Struggle for Human Rights (Oxford University Press).

margaret moore is a professor in the political studies department

at Queen’s University, where she teaches political philosophy. She is the author of A Political Theory of Territory (oup 2015), which won the Canadian Philosophical Association Best Book Prize.

kish parella is the Class of 1960 Professor of Ethics and Law at

Washington and Lee University School of Law. Her research is in business and human rights with a particular focus on the responsibilities of transnational corporations in global supply chains.

andrew m. robinson is an associate professor and program co-

ordinator of Human Rights and Human Diversity at Wilfrid Laurier University.  His publications include “Governments Must Not Wait on Courts to Implement undrip Rights Concerning Indigenous Sacred Sites: Lessons from Canada and Ktunaxa Nation v. British Columbia” (International Journal of Human Rights, 2020) and “LiberalDemocratic States Should Privilege Parental Efforts to Instill Identities and Values” (Theory and Research in Education, 2017).

Contributors 319

friderike spang is an snsf (Swiss National Science Foundation)

Senior Researcher at the University of Lausanne. Recent publications include “Compromise in Political Theory” (Political Studies Review, 2023), “Should the Animal Rights Movement Make Use of Deliberative Activism?” (Politics and Animals, 2022), and “Why a Fair Compromise Requires Deliberation” (Journal of Deliberative Democracy, 2021).

Index

Adair, Douglas, 241–2 Africa, 18–19, 133–59 agency. See normative agency (personhood) American exceptionalism, 238–43 Amit, Eleanor, 220 animals (non-human), 98, 108–16 Appiah, Kwame Anthony, 273–4, 281 Archard, David, 27–8, 46n11, 48, 55–6, 71n56 Argentina, 123 Arneson, Richard, 194–201, 203, 209 Atran, Scott, 219, 228, 230 autonomy: of children, 16–17, 27–47, 51–9; as choice, 49, 52–8, 60, 65, 66–9; as ground of human rights, 17–18, 97–9, 101–5, 107–9, 112, 112–16, 117n11, 117n13; personal, 48–51, 52, 54, 56, 68; situated, 48–9, 53, 54–60, 68–9; and toleration, 270–3, 278–82 Bachvarova, Mira, 17, 72–94 Bailyn, Bernard, 240 Barrick Gold, 132n7 Barry, Brian, 206, 209 Becker, Carl, 239 Bellamy, Richard, 224

Bentham, Jeremy, 110–11 Berger, Thomas, 255 Bilateral investment treaties (bits ), 123 Bohman, James, 76–7, 81, 83 Brighouse, Harry, 60, 61 Canada, as Lockean country, 227–38, 248–58; as peaceable kingdom, 255–8 Canadian Charter of Rights and Freedoms, 236–8, 246–7, 25355, 258 Canadian constitutionalism, 236–7, 243–8 Cardinal, Harold, 257 Carens, Joseph, 174, 177, 178 Cartier, George-Étienne, 247 children: autonomy of, 16–17, 27–47, 51–7; basic view of autonomy rights of, 28, 32–40, 42, 44–5; defined, 28–9; errors when assessing autonomy of, 31–42; integrationist policies for, 49, 62–8; interests and rights of, 16–17, 27–9, 45, 45, 47n18, 48–9, 51–69 compromise, moral, 20, 212–35; affective aversion to, 213–14, 218–24, 226, 229–31; feasibility of, 212–13,

322

Index

218, 222–31; pragmatic, 213, 222–5, 231; principled, 213, 222, 224–7, 231; and respect, 213, 222, 224–30 Conly, Sarah, 17, 101–5 constitutionalism, 236–8, 241, 243–8, 255, 258 cosmopolitan regard, 10–13, 18, 119–32, 191 Creighton, Donald, 244–7 culture, right to one’s own, 16–17, 48–9, 52, 58, 69; equal recognition for, 277–82 Darwall, Stephen, 226 Darwin, Charles, 109 democracy, and international order, 134, 139, 151, 153–4 Dicey, A.V., 248 Dickson, Brian, 253–4 dignity, human, 100–1, 108–11, 113–14, 115, 117n13, 118n44 Dobel, Patrick, 224–5 Durham Report, 256 Dworkin, Ronald, 250, 277, 283 Erikson, Erik, 63 fairness, 19–20, 191–211; and political obligation, 192–4; and public goods, 191–206 Federalist Papers, 241–3 Fisher, Kirsten, 18–19, 133–59 Forst, Rainer, 264 free movement, moral right to, 174–7 free-riding, 191–4, 195–201, 208–9 free speech, 20–1, 236–60 Friedrich, Carl, 236 Frye, Northrop, 257

Galeotti, Anna Elisabetta, 274–6, 289n23 Ginges, Jeremy, 219, 228, 230 Global value chains, 18, 119–21, 127, 129, 131 Goethe, Johann Wolfgang von, 261 Grant, George, 243–7 Greene, Joshua, 215–17, 220, 223, 230 Griffin, James, 98–103, 105–11, 114–15, 116–17nn2–3, 117n13 Gutmann, Amy, 225–6, 234n41 Haidt, Jonathan, 215, 223, 232–3n11 Hannan, Sarah, 16, 27–47 Hardin Russell, 199, 200 Hart, H.L.A., 193 Hartz, Louis, 239–42 hate speech, 20–1, 236–8, 248–50, 252–5, 258 head of state immunity, 134, 138, 141, 146, 149–56 Hewlett Packard (hp), code of conduct, 125 Hibbert, Neil, 19–20, 191–211 Hohfeld, Wesley Newcomb, 183n3 Holmes, Oliver Wendell, Jr, 236, 248–52, 254 Honoré, Tony, 205–6 Hooker, Richard, 245–6 human rights, 17–18, 97–118; to freedom of movement, 162, 174–7, 184n8; and human supremacism, 98, 101, 108–16; and interests, 105–8; and normative agency, 97–101, 106–8, 110, 112, 114, 116; minimalism, 99–100, 117n11; pluralist defence of, 97–8, 105–8, 110, 112–13, 115 human supremacism, 98, 101, 108–16

Index

immigration, 19, 160–88; cosmopolitan view of, 161–2, 177–81; and distributive justice, 162, 170, 174, 177–81; statist view of, 160–2 intergenerational justice, 13–16, 17, 72–94 International Criminal Court (icc ), 18–19, 133–59; relationship to African states, 134, 136–9, 141, 145–56; and Rome Statute, 133, 136, 145, 148, 150, 157n6 international criminal law (icl ): history of, 133, 135–9; and outsiders’ voices, 145–54; and questions of legitimacy, 139–45 international criminal tribunal for the Former Yugoslavia (icty ), 142–4 international criminal tribunal for Rwanda (ictr ), 142–4 involuntary benefit, 197, 200, 202 James, William, 229 Jefferson, Thomas, 242–3, 250–1, 253 Jones, Charles, 17–18, 97–118 Jones, Karen, 229 Jones, Peter, 234n37, 267, 269, 284 justice, Richard Vernon on, 8–16 Kant, Immanuel, 160, 162, 167–70, 182 Kateb, George, 108, 110 Keegstra, James, 253–5, 258 Kiobel v. Royal Dutch Petroleum Co., 122 Klosko, George, 198, 200–5, 208–9 Koch, Adrienne, 255–6 Kymlicka, Will, 17, 18, 48–51, 68, 98, 101, 108–10, 113–16, 118n44, 118n47, 199, 284

323

LaSelva, Samuel V., 20–1, 236–60 Lecce, Steven, 21, 261–91 Levy, Leonard, 250–1 Liberal democracy, Vernon on, 3–6 Lipset, Seymour Martin, 237–9, 243, 247, 249 Locke, John, 237–43, 248–58, 262, 265, 283 Lomasky, Loren, 166–7 Lovett, Frank, 85–6 Lynch, David, 113 Macdonald, John A., 243–6, 248, 256 Machiavelli, Niccolo, 240–1, 156 Macleod, Colin, 60 Madison, James, 241–3, 255–6 Margalit, Avishai, 212–13, 223–4 May, Simon, 222, 226–8, 231 Mill, John Stuart, 262 Miller, David, 168, 183–4n3, 185n21 Montevideo Convention on the Rights and Duties of States, 183n1 Moore, Margaret, 19, 160–88 multiculturalism, 236–8, 244, 246, 254; liberal, 48–53, 58–9, 60, 63, 67–9, 279 neutrality, state, 262–3, 267–9, 274–8, 281–5, 290n57 Nine, Cara, 184n9, 185n19 non-domination 17, 72–94, 186n32; constitutions as instruments of, 90–3; as a good, 85–6; as a political ideal, 74–5; as a relationship between generations, 75–84, 86–9 normative agency (personhood), 17–18, 97–118; autonomy, liberty, and minimum provision, 98–100, 107

324

Index

North Atlantic Treaty Organization (nato ), 143–4, 148 Nozick, Robert, 193–4 Nuremberg trials, 135, 142 Paine, Thomas, 266 Pal, Radhabinod, 142 Pangle, Thomas, 242 Parella, Kishanthi, 18, 119–32 parents’ rights and responsibilities, 42–4, 51–4, 54–7 Patten, Alan, 274–8, 280–1 Peaceable Kingdom, Canada as, 255–8 Pettit, Philip, 74, 82–4, 90–1, 186n32 Pico della Mirandola, 109 pluralism, 237–8, 243–8, 253–8, 262, 267–70, 275, 278, 289n23 Pocock, J.G.A., 240–1 political obligation, 9–10, 12–13, 19–20, 191–211; and fairness, 191–206; and political stability, 206–10 Prinz, Jesse, 215, 218, 227–8, 233n25 Proast, Jonas, 251 public goods, 191–21; and fairness, 195–206 Rawls, John, 51, 100, 117n11, 193, 198, 262, 268, 283, 285, 291n76 Raz, Joseph, 106 recognition, 21, 261–91; for cultures, 277–8; equal, 263–4, 272–87 refugees, 179–80, 183 Ripstein, Arthur, 209 Robinson, Andrew, 16–17, 48–71 Rome Statute. See International Criminal Court

Rosen, Michael, 113 Royal Commission on Bilingualism and Biculturalism (1965), 243, 246, 254 Ruggie, John, 121 Schabas, William, 157n6 Schapiro, Tamar, 33–4, 36, 47n12, 47n21 Schauer, Frederick, 251 Scheffler, Samuel, 283–4, 287–8, 291n75 Schwimmer, Rosika, 249–50, 252 Simmons, A. John, 164–5, 171, 195–6, 199 Slattery, Brian, 257–8 Slaughter, Steven, 76, 79–80, 82, 88 Smith, Patrick Taylor, 76, 79–82 Spang, Friderike, 20, 212–35 Spinoza, Baruch, 229 Steiner, Hillel, 164–5, 185n20 Swift, Adam, 60–1 Tasioulas, John, 107 Taylor, Charles, 207, 238, 254, 272, 274, 286 territorial rights, 19, 160–88; collective self-determination view of, 162, 170–3, 175–6, 179; Kantian view of, 160, 162, 167–70, 182; Lockean view of, 160, 162, 163–7; requirements of a theory of, 161–2 Téson, Fernando, 166–7 Thompson, Dennis, 225–6, 234n41 Tokyo tribunal, 142 toleration, 20–1, 238, 248–55, 261–91; classical view of, 262–3, 264–70, 275, 278, 285, 287; and personal

Index

autonomy, 270–3, 278–81; reinvented as equal recognition, 263–4; and solidarity, 287–8; Vernon on, 6–8 Tomlin, Patrick, 27 transnational corporations (tncs), 18, 119–32 Trudeau, Justin, 261, 269 Trudeau, Pierre, 246 United Nations Declaration on the Rights of Indigenous Peoples, 62 United Nations Security Council, 136, 142–8 United States, and civic republicanism, 239–42; as Lockean country, 238–43, 248–55 Universal Declaration of Human Rights, 99, 115 Vernon, Richard: contributions to political theory, 3–16, 160; on

325

cosmopolitan regard, 119–20, 126–31, 191–3, 197, 203, 206; on iterative contractualism, 12–13, 15, 18, 124; on justice within and beyond the state, 8–13, 154; on liberal democracy, 3–6; on rights and interests, 105–7; on the state, 123–4; on temporal (intergenerational) justice, 13–16, 72, 73, 93; on toleration, 6–8 Versailles, Treaty of, 135 Waldron, Jeremy, 108–10, 112, 118n44 Weinstock, Daniel, 49, 53–4, 58, 60, 63–5, 225, 227–8 William of Ockham, 109 Wood, Gordon, 242 Ypi, Lea, 184n8